Table of Contents

Ethical Conundrums Facing Mediators: Comparing Processes, Identifying Challenges and Opportunities

Judy Gutman, La Trobe Law
Jodie Grant, Relationships Australia

Lawyer Discipline in an Authoritarian Regime: Empirical Insights from Zhejiang Province, China

Judith A. McMorrow, Boston College - Law School
Sida Liu, University of Toronto, American Bar Foundation
Benjamin van Rooij, University of California, Irvine School of Law

Moral Courage in Indigent Defense

Tigran Eldred, New England Law | Boston

The Character of Codes: Preserving Spaces for Personal Integrity in Lawyer Regulation

Michael S. McGinniss, University of North Dakota School of Law

Diversity, Compliance, Ethics & In-House Counsel

Steven A. Ramirez, Loyola University of Chicago School of Law

Ministers of Justice and Mass Incarceration

Lissa Griffin, Pace University School of Law
Ellen Yaroshefsky, Hofstra University - Maurice A. Deane School of Law


LEGAL ETHICS & PROFESSIONAL RESPONSIBILITY eJOURNAL

"Ethical Conundrums Facing Mediators: Comparing Processes, Identifying Challenges and Opportunities" Free Download
35(1) Law in Context 101
La Trobe Law School - Law & Justice Research Paper Series Paper No. 1707

JUDY GUTMAN, La Trobe Law
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JODIE GRANT, Relationships Australia
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Mediation forms a core part of dispute resolution initiatives in family law and civil litigation. This article considers several ethical issues confronting mediators in family and civil disputes. We compare ethical frameworks, drawing on issues arising from mediation practice in two specific court-connected fora. Further, we make recommendations for changes to existing mediator training and to applicable standards and codes.

"Lawyer Discipline in an Authoritarian Regime: Empirical Insights from Zhejiang Province, China" Free Download
Georgetown Journal of Legal Ethics, Vol. 30, No. 2, 2017
Boston College Law School Legal Studies Research Paper No. 458
UC Irvine School of Law Research Paper No. 2017-35

JUDITH A. MCMORROW, Boston College - Law School
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SIDA LIU, University of Toronto, American Bar Foundation
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BENJAMIN VAN ROOIJ, University of California, Irvine School of Law
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On paper, the state-run lawyer disciplinary system in China serves multiple interests: client protection, maintaining the reputation of the legal profession, upholding the rule of law, and safeguarding the party-state authority. This Article assesses which of these interests dominates in the lawyer disciplinary process by analyzing 122 published lawyer discipline cases from Zhejiang Province from 2007–2015. These records of lawyer discipline evidence an authoritarian political logic of attorney discipline, with punishment most clearly serving to safeguard the Communist Party’s rule by keeping lawyers in bounds and tightly tied to their law firms. Subordinate to this are other state interests such as upholding the legal system and rule of law, as well as private interests of protecting firm income. Client protection is a secondary interest at best, with only a handful of cases having clear client-protection goals. The dominance of party-state interests reflects not only the socialist legacy, but also the persistence of an authoritarian legality in contemporary China.

"Moral Courage in Indigent Defense" Free Download
New England Law Review, Vol. 51, p. 97, 2017
New England Law | Boston Research Paper No. 17-08

TIGRAN ELDRED, New England Law | Boston
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This essay, part of New England Law Review’s symposium on Behavioral Legal Ethics, explores the conditions under which criminal defense lawyers for indigent clients can be expected to resist excessive workloads. Drawing from research on the psychology of moral courage, it identifies factors that have been found to correlate to courageous conduct in the face of personal risk, most notably the role of anger, moral conviction and sensitivity to injustice. Applying these findings to the field of indigent defense, it sets out some preliminary ideas about how to identify and overcome barriers to action.

"The Character of Codes: Preserving Spaces for Personal Integrity in Lawyer Regulation" Free Download
Georgetown Journal of Legal Ethics, Vol. 29, No. 3, 2016

MICHAEL S. MCGINNISS, University of North Dakota School of Law
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This Article argues professional conduct codes should preserve spaces for individual lawyers to practice law with personal integrity. For background, it briefly describes the history and general traits of national codes on the regulation of lawyers, culminating with today’s ABA Model Rules of Professional Conduct. It then considers how and why code language exhibiting the virtue of generality and allowing for the exercise of discretion most effectively preserves spaces for personal integrity in lawyer regulation. It concludes by considering the benefits of voluntary, practice-specific ethical standards, using as an illustration those adopted for matrimonial lawyers.

"Diversity, Compliance, Ethics & In-House Counsel" Free Download
University of Toledo Law Review, Vol. 48, No. 3, 2017

STEVEN A. RAMIREZ, Loyola University of Chicago School of Law
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Empirical evidence demonstrates that America’s diverse population holds differing approaches to ethics, compliance, and risk. In-house counsel can harness these differences to assure that a firm’s conduct comports with, and acclimates to, the differing ethical and compliance sensibilities and sensitivities within the general population, and within key corporate constituencies such as labor, investor and consumer pools. Essentially, in-house counsel can assure that any proposed business conduct or transaction clears all relevant filters—not just the traditional white male filter—and advise senior management accordingly. Counsel wishing in good faith to stem misconduct would hold an additional tool: feedback from within the firm, or from outside counsel, that diverse perspectives found the proposed course of business or transaction objectionable. Only management uninterested in acclimating the firm to the cultural diversity within key corporate constituencies would proceed in the face of such feedback. While cultural diversity alone will not compensate for the flawed legal frameworks at play in this arena, it may arm in-house counsel with tools that can deliver superior outcomes more often than traditionally has been the case. At the very least, enhanced cultural diversity embedded in a screening function within the firm, that is armed with the tools for a heterogeneous assessment of the most dubious firm practices, provides the firm with an objective and rigorous basis for determining the ethicality and costs of a given practice or course of conduct. The firm will at least find itself well-equipped to acclimate itself to its key constituencies and that should stem the costliest corporate misconduct. Given the macroeconomic catastrophe that followed the collapse of the financial sector in 2008 and 2009, improvement may prove easy.

"Ministers of Justice and Mass Incarceration" Free Download
Georgetown Journal of Legal Ethics, Vol. 30, No. 301, 2017

LISSA GRIFFIN, Pace University School of Law
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ELLEN YAROSHEFSKY, Hofstra University - Maurice A. Deane School of Law
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Over the past few years, scholars, legislators, and politicians have come to recognize that our current state of “mass incarceration? is the result of serious dysfunction in our criminal justice system. As a consequence, there has been significant attention to the causes of mass incarceration. These include the war on drugs and political decisions based on a “law and order? perspective. Congressional and state legislative enactments increased the financing of the expansion of police powers and provided for severely punitive sentencing statutes, thereby giving prosecutors uniquely powerful weapons in securing guilty pleas. All of this occurred as crime rates dropped.

Where were the lawyers when our criminal justice system was evolving into a system of mass incarceration? Surprisingly, in looking for the causes and cures for the mass incarceration state, very little, if any, attention has been paid to the role of the most powerful actor in the criminal justice system: the prosecutor. It is the prosecutor who exercises virtually unreviewable discretion in seeking charges, determining bail, negotiating a resolution, and fixing the sentence. Now, however, there is data that identifies aggressive prosecutorial charging practices as the major cause of the explosion in our prison population. That is, over the past twenty years prosecutors have brought felony charges in more cases than ever before, resulting in a dramatic increase in prison admissions. If prosecutorial charging practices have been a major cause of the universally recognized mass incarceration problem, what should be done? How does the role of the prosecutor need to change to prevent a continuation, or a worsening, of our mass incarceration problem?

This Article examines the recognized role of the prosecutor as a “minister of justice,? and makes a range of suggested changes to the prosecution function. These include re-calibrating the minister of justice and advocacy role balance in recognition of the current mass incarceration crisis; enacting measures to ensure independence from law enforcement in the charging function; collecting currently non-existent, objective data that breaks down and memorializes available information on each decision to charge as well as its consequences; and drafting written charging procedures and policies based on the collection of that data-driven information.

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Legal Ethics & Professional Responsibility eJournal

STEPHEN GILLERS
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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

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Harvard University - Center on the Legal Profession

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