Legal Ethics

The author's aim is to prove that certain moral principles will always be etched into laws when the interest of society demands it and when morality as a set of norms guiding behavior no longer functions in an expected manner outside the system of law. In this paper, it is argued that morality is constituted within the law in a more profound way as well as in a way which is also much more difficult to identify than, for example, conventional (...) instructions concerning professional ethics may indicate. The main thesis is that de facto there are no particular professional ethics of lawyers beyond or above the ethical principles binding all people. (shrink)

Comparative case studies of lawyer deviance and discipline offer a unique perspective on how and why lawyers misbehave, how regulatory bodies respond, and the efficacy of those responses. Such studies also provide valuable pedagogic tools, opening the eyes of law students to the ways in which they, too, could transgress ethical rules. This special issue builds on my two books on misbehaving lawyers in New York and California by presenting vivid accounts of such lawyers in the UK, Canada, Australia, New (...) Zealand, and the Netherlands. (shrink)

For more than a decade, American lawyers have bewailed the ethical crisis in their profession, wringing their hands about its bad image. But their response has been limited to spending money on public relations, mandating education, and endlessly revising ethical rules. In this book, Richard Abel will argue that these measures will do little or nothing to solve the problems illustrated by the six disciplinary case studies featured in this book unless the legal monopoly enjoyed by attorneys in the U.S. (...) is drastically contracted. -/- Richard Abel examines some of the most common ethical complaints made about lawyers in Lawyers in the Dock. Using detailed records of disciplinary proceedings, he describes the actions surrounding certain cases based on three of the most common complaints: neglecting the client by failing to pursue cases diligently; overcharging of clients by mystifying billing practices; and betraying adversaries and courts out of excessive loyalty to clients or causes. -/- In this book, Richard Abel will argue that these measures will do little or nothing to solve the problems exposed by his six disciplinary case studies unless structural changes are made to the legal monopoly in order to restore the public trust in lawyers. Lawyers in the Dock is essential reading for lawyers, law students, and potential clients who wish to restore trust and professional responsibility in the legal profession. (shrink)

In 1869, the Supreme Court treated United States v. Kirby as a simple case. In 1994, it treated Albright v. Oliver as a case divorced from history. Understanding the factual complexity of Kirby provides the historical framework missing from Albright and casts new light on the issue of whether the Fourteenth Amendment forbids malicious prosecution.United States v. Kirby appeared straightforward. John W. Kirby was indicted for interferring with the United States mail by detaining a mail agent, Dr. Cyrus W. Farris, (...) and a mail steamer. John Kirby's defense was simple. He was the sheriff of Gallatin County, Kentucky. The mail agent, Dr. Farris, had been indicted for murder twice by the grand jury of that county. Sheriff Kirby admitted that he had detained Dr. Farris solely to arrest him for those murders. He admitted that he had detained the mail steamer, but only for the length of time necessary to effectuate the arrest. Surely he should not be held criminally liable for simply doing his duty.The Supreme Court agreed. In Language that would be quoted for more than a century, the Court held that "(g)eneral terms (of a statute) should be so limited in their application as not to lead injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character." Just as a law against jail break does not apply to a prisoner who flees to avoid a fire so a law against interfering with the passage of the mail should not apply to a sheriff who simply arrests a mail agent who has been indicted for murder. It seems a self-evidently correct result. Yet, there is something inherently implausible about the facts of the case as presented in the Supreme Court's opinion like a law professor's hypothetical: useful to make an abstract point but nothing that would ever happen in the real world. What grand jury would indict a local sheriff for arresting a murder? What United States Attorney would prosecute such a case? There must be more to the story.There is.Based on previously unpublished archival materials and contemporaneous newspaper accounts, this article tells the story that was never presented to the Supreme Court in which people and events were not always what they seemed. Dr. Farris was a mail carrier, but he was also the provost marshall who had led the Union Army's fight against guerrillas in Gallatin County. John Kirby was the sheriff of that county, but he was also the vengeful, secessionist brother-in-law of a confederate guerilla who had been killed during Farris's guerrilla suppression efforts. Farris had been charged with "murders," but those "murders" were the killings of guerrillas by Union Soldiers. Sheriff Kirby was acting pursuant to an indictment that had been obtained from a "rebel grand jury" largely selected by the Sheriff himself. The seizure of Farris was an "arrest;" effectuated by a mob of more than 150 armed Confederate sympathizers who seemed more intent on Killing Farris than on bringing him to trial. The story illuminates an important part of the background of the fourteenth amendment. Dr. Farris's indictment was an example of a pervasive problem that faced the Congress just before the enactment of that amendment: the frequent use of baseless prosecutions to punish and intimidate those who tried to enforce national policy after the war. By the time the Thirty-Ninth Congress proposed the Fourteenth Amendment, there had been more than three thousand such prosecutions in Kentucky alone. The Thirty-Ninth Congress was well aware of the problem of baseless prosecution of Union supporters, discussed it in detail, and enacted legislation to deal with it. The pervasiveness of such prosecutions sheds new light on an issue that had perplexed the Court's of Appeals and that sharply divided the Supreme Court in Albright v. Oliver: whether malicious prosecution constitutes a violation of the Fourteenth Amendment recognizable under 42 U.S.C § 1983? (shrink)

In this paper we examine the relationship between diligence and ethics and the connection between procrastination and ethical misconduct for lawyers. From there we ask the question of whether legal education does enough to teach law students good habits of time management that might minimize the kind of procrastination that so often goes hand in hand with lawyer malfeasance. Far from concluding that legal education addresses these issues adequately we advance the claim that legal education actually teaches procrastination. Drawing on (...) the work of Neil Fiore and his book: The Now Habit: A Strategic Program for Overcoming Procrastination and Enjoying Guilt-Free Play we argue that law students are often susceptible to the psychological factors that lead to procrastination: fear of failure, fear of success and resentment of authority. From there we outline aspects of legal education that feed into rather than combating these vulnerabilities. Finally we outline recommendations for how legal education could begin to take more seriously the relationship between time management and legal ethics and to model and inculcate good time management skills. (shrink)

a relatively more sympathetic attitude among younger judges, many of them women, and among trainees, may reflect a historical evoluti.

[Translated by Google] The article touches upon one of the most important problems of criminal - procedural law. It examines the procedural position of the defense in the criminal - procedural production in terms of its role and importance. In the above legal literature expressed views on this issue. Based on the analysis of opinion identified three positions: 1.zaschitnik - representative of the accused; 2.zaschitnik - an independent participant in the process and at the same time representative of the accused; (...) 3.zaschitnik - assistant justice. Expressed about the legal status of the defense of equal rights representative of the accused as an independent subject of Procedure, the defender is why procedural independent entity and to what extent is defined by its independence, in which case the defender is representative of the accused and whether the defender of justice and the assistant. etc. On the basis of comparative analysis examined opinions on the issues of the theory of procedural law in Russia, Poland and Germany. Analyzed the mismatch position and the defense of the accused in relation to the fact of the crime, the ratio of public and private interests, and other questions, suggestions, and opinions. The work refers one of the important problem of the trial theory. A judicial procedure of protector is scrutinized from the standpoint of protector's role in the trial. Opinions expressed about this matter, in Law Literature, are given in this work. It follows that there are three positions: 1. Protector as a representative of the accused; 2. Protector as an independent part of a court trial and simultaneously representative of the accused; 3. Protector as an assistant of court. There are also given opinions about a judicial status of protector, why is it an independent element and etc. The conceptions existed in Russian, German, Polish trial theory about the above-named matter are discussed too. It is analyzed a relationship between the accused and protector, an incompatibility of positions about the fact, correlation of private and common interests and other issues. (shrink)

The statements of physicians who serve as expert witnesses for the tobacco industry reveal subtle but significant problems. Some expert testimony obfuscates the important issues, and some initially reasonable statements later evolve into extreme positions during cross-examination. Such statements fall into a “gray area” of professional ethics, potentially misleading juries and adversely affecting professional integrity. Medical associations can and should strongly enforce professional standards that do not tolerate tobacco industry influence on physician expert witnesses.

Retributivism is regarded by many as an attractive theory of punishment. Its primary assumption is that persons are morally responsible agents, and it demands that the social practices of punishment acknowledge that agency. But others have criticized retributivism as being barbaric, claiming that the theory is nothing more than a rationalization for revenge that fails to offer a compelling non-consequentialist justification for the infliction of harm. Much of the contemporary philosophical literature on retributivism has attempted to meet this criticism. One (...) common move has been to recast retributivism within the social contractarian tradition. The argument is that the justification for retributive punishment flows naturally from social contractarian political theories. Thus, not only is it reasonable to claim that wrongdoers merit punishment independent of any consequentialist concerns, but that fairness requires retributive punishment. While allying retributivism with social contractarianism provides retributivism with a nonconsequentialist justification for punishment (one fuller and less problematic than the conception of "desert" that worries the critics of retributivism), I will argue that far from strengthening the justification of retributivism, social contractarianism weakens it. For this version of the theory invites the Marxist charge that our society is ordered by profoundly unfair political and social institutions, and that to justify punishing the criminals disadvantaged by such institutions with the claim that fairness requires their punishment approaches a cruel joke. Some have defended the contractarian-based theory of retributivism against the Marxist criticism by claiming that it does not require the punishment of such individuals precisely because social relations are unfair. I will conclude in this paper that although such a move is appealing, it is untenable. And if such a move is not open to the retributivist, she is now in the uncomfortable position of either turning a blind eye to the injustices by which many criminals are victimized or abandoning her retributivist intuitions (the very intuitions that drove her to social contractarianism to bolster her theory of retributivism in the first place). I will conclude that attempts to bolster retributivism by appeal to social contractarianism should be abandoned and retributivists ought instead to seek to develop their theory of punishment within an alternative type of political theory. (shrink)

Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, or the hope of (...) deterring other criminals. Because the most commonly discussed version of retributivism is developed from Kant's moral and legal theory, I will refer to it as Kantian Retributivism. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair. I have argued elsewhere that neither strategy is tenable. (shrink)

Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, or the hope of (...) deterring other criminals. Because the most commonly discussed version of retributivism is developed from Kant's moral and legal theory, I will refer to it as Kantian Retributivism. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair. I have argued elsewhere that neither strategy is tenable. (shrink)

This article sets forth some critical observations about the role of children's attorneys in reinforcing and challenging sociolegal norms, particularly those norms that are not child-driven or child-centered. More concretely, it critically explores the role of children's lawyers in promoting the individual and systemic interests of their youthful constituents, most of whom receive lawyers because they are caught in systems that predominately serve poor children and children of color. The article first reflects on the indeterminacy and contingency of the category (...) of children, checking our natural tendencies to idealize children and childhood. The second section describes the children's bar, examining its legalistic approach to children's problems and their solutions, which contemplate children in isolation from their families and communities. The third section notes the decline in children's well-being, despite the growth of a children's bar, and sketches five thematic observations that might account for this anomaly and raise questions regarding the utility of children's lawyers and the roles that they might occupy. These observations relate to themultiple gulfs between children and attorneys, and the limitations of rights-based advocacy, particularly for clients who do not have the authority to define justice in their own terms. The final section explores how children's attorneys are beginning to critically assess their dominance and their approaches to the legal representation of children, and to develop methods to ensure that the child's viewpoint is expressed. (shrink)

In “Professional Detachment: The Executioner of Paris,” I concluded with the cheap and some would say libelous suggestion that lawyers might accurately be described as serial liars, because they repeatedly try to induce others to believe in the truth of propositions or in the validity of arguments that they believe to be false. Good lawyers have responded with some indignation that, in calling zealous advocacy “lying,” I have misdescribed the practice of law. I wish to explain why I believe that (...) it is the practice of lawyering that engages in misdescription. (shrink)

THE WHOLE WORLD LOVES A MAVERICK, AND THE WHOLE WORLD WANTS THE MAVERICK TO ACHIEVE SOMETHING NOBLER THAN SIMPLE REBELLION. - KEVIN PATTERSON In 2006, Mark Cuban, the mercurial owner of the Dallas Mavericks NBA franchise announced his most controversial venture to date: Sharesleuth.com. Controversy was nothing new to Cuban, who had propelled his technology startup, Broadcast.com through a legendary 1998 IPO, had sold it to Yahoo for $5.7 billion the following year, and had subsequently founded a number of hotly (...) debated entrepreneurial ventures. Sharesleuth's mission was, though ambitious, fairly benign on its face: It aimed to provide independent reporting aimed at exposing securities fraud and corporate malfeasance to an online audience. Cuban hired award winning St. Louis Post-Dispatch reporter Christopher Carey to manage the website, and promised to undertake an anti-fraud, pro-investor stance as the site's foundational journalistic strategy. Cuban heralded Sharesleuth as a new model for Internet journalism, and a formidable threat to crooked executives. There was only one catch: In an effort to make the project financially viable, Cuban revealed that he would take positions in securities on the basis of malfeasance Carey uncovered prior to publication of the findings. There are a million ugly stories in the financial underground, Cuban declared. We plan on finding them and sharing and profiting from them. Within moments of the announcement those listening carefully might have heard a curious sound: The voices of many a securities lawyer, financial journalist and market analyst asking in relative unison - Can he do that?This piece will examine the legality of Cuban's Sharesleuth venture, and will endeavor to demonstrate that Cuban has not engaged in any illegal activity. The first part of this article briefly describes the Sharesleuth business model, its publications to date, the contemporary legal standards for insider trading through an analysis of the doctrinal development of Section 10 and Rule 10b-5 under the Securities Exchange Act of 1934, and the arguments cited by Sharesleuth's critics. In the second part, the article explains why Sharesleuth's business model is legal on the basis of the Court's historical application of Section 10 and Rule 10b-5, and concludes that Sharesleuth does not constitute stock manipulation, does not contain misrepresentation or omission, and does not contain findings that qualify as material, nonpublic information. The third part examines whether the government can prohibit Sharesleuth's behavior, and concludes that it cannot. The final part examines whether the SEC should regulate Sharesleuth in light of market efficiency considerations, and concludes that it should not.The analysis offers a novel look at the intersection of insider trading law and for-profit online journalism, with an eye toward market efficiency. While much has been written about Cuban and Sharesleuth in the Blogosphere, this will be the first treatment of the issue in a scholarly forum. In addition to the attention this analysis pays to an interesting contemporary issue that may be either litigated or legislated against in the future, its broader significance in light of public interest surrounding corporate malfeasance cases makes it especially timely. (shrink)

The threat perceived by U.S. lawyers and law firms arose in the late 1990s, when the "Big 5" international accounting firms began acquiring law firms in Europe and announced plans to provide legal services to clients globally through multidisciplinary practices (MDPs). Such practices offered clients the convenience of "one-stop shopping" and the backing of well-financed, worldwide organizations. Responding to concerns of many in the legal profession regarding competition with accountant-led legal practices; recruitment of law school graduates by accounting firms; sharing (...) of revenues by lawyers and non-lawyers; potential conflicts of interest by MDPs; and other issues of ethics, the American Bar Association (ABA) established a Commission in 1998 to review the situation and make recommendations. The Commission‘s recommendations-- to allow lawyers to work in MDPs and to share revenues subject to certain safeguards-- were rejected by the ABA House of Delegates in 2000. This paper traces developments affecting the competition since then, including stricter regulation of the accountancy sector in the United States following the Enron accounting scandal; the collapse of Arthur Andersen, reducing the "Big 5" to the "Big 4"; spinoffs of consulting arms of accounting firms; international growth of law firms; and the weakening of accountant-led MDPs in many countries. The paper concludes that the imminent threat is greatly diminished, but not completely gone. It points out that accountant-led MDPs still exist along with networks of law firms tied to accounting firms and that the trend toward MDPs could be revitalized some day, considering the demand for "one-stop shopping" and legal reform legislation on the horizon in the United Kingdom, which could allow ownership of law firms by non-lawyers and by public shareholders, serving as a model for similar regulation in other countries. In the meantime, laws and regulations in the United States and other countries that restrict lawyers from working and sharing fees with non-lawyers and measures that limit ownership of law firms and other professional firms continue to serve as impediments to the growth of competition and consumer choice. (shrink)

This article concerns a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty (usually because the client confessed to the lawyer), but the client insists on an all-out defense? Legal ethicists have struggled with this problem since the Courvoisier case in 1840, but it remains unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical (...) decisionmaking. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide interesting perspectives on the strong vs. weak adversarialism dilemma. According to numerous films, television shows and novels, the right answer to the lawyer's dilemma is no adversarialism at all. The good lawyer should betray evil clients to insure that the truth is discovered. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth. Literature casts doubt on whether a lawyer can know with certainty whether a client is telling the truth. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings. (shrink)

Nearly everyone is at times an advocate. By professional role, some people act quite regularly as advocates: lawyers, legislators, executives, merchants, and, in many contexts, educators. Lawyers often consider themselves obligated to maintain a special “zeal” toward their clients' interests, and there are many laws and principles of legal ethics that govern advocacy by attorneys. This article concerns the ethics of advocacy, not its legal aspects. Indeed, I cannot even address the full range of moral issues raised by advocacy; I (...) focus mainly on an area rarely addressed by writers in legal ethics and insufficiently examined in the genral literature of ethics. It is the domain of individual conscience, the arena of internal states and processes, such as desires, beliefs, and thoughts. I am particularly interested in how moral standards apply to the use of reasons in the practice of advocacy. My broadest thesis is that advocacy needs an ethics of reasons, and not just of external behavior. (shrink)

This Essay discusses the gradual changes occurring within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include greater attention to other disciplines, primarily economics and behavioral sciences, and the contributions they make to a fuller understanding of the legal system. In addition, law schools are increasingly exploring the ways in which the law in textbooks may differ from the law in action. Nearly every law school, therefore, is seriously investigating the social and (...) economic background of legal rules and their consequences through clinical legal education, which attempts to provide a real or simulated laboratory experience for law students. The most pervasive change, however, may be the breaking down of traditional artificial and arbitrary classifications of subject matter, which attempt to provide the advanced student a tentative method for organizing his or her knowledge about the legal system. Therefore, comparative law courses in the law school curriculum have surfaced in an attempt to inspire students to think creatively about legal problems by providing new insights into the legal system. To illustrate their support of this approach, the authors discuss their experience with creating and teaching a comparative law course at Boston College Law School. The Essay provides support for existing literature surrounding comparative law in legal education while illustrating its importance to law school curriculums throughout the United States. (shrink)

Robert Alexy’s theory of legal argumentation is among the notable contributions made to mainstream jurisprudence in the last three decades. Remaining true to its rational discursive mission, it engages with both analytical positivism and natural law theories. A recent collection of essays edited by George Pavlakos explores Alexy’s theory from a number of philosophical standpoints, revealing its theoretical potential and flaws. By doing so, this volume helps us to gain a better understanding of the implications of Alexy’s theory of legal (...) argumentation, but also to identify new areas of research within the discourse theory of law. Although this collection is concerned with a critical examination of various aspects of Alexy’s work, it nonetheless draws attention to the dual characteristics of positive law, that is, the problematic separation of facts from values, law from morality, legal certainty from justice, which continue to preoccupy legal theory. In what follows I shall attempt to examine the debate between Alexy and the contributors to Pavlakos’s volume in order to gain a deeper understanding of the role of dichotomies in legal theory. Part 1 starts by explaining the theoretical background against which I have read the debate on Alexy’s theory of legal argumentation. I have explored the role of dichotomies in socio-legal research elsewhere. However, in the following pages, I shall use Alan Norrie’s critical examination of antinomies to throw light on some of the shortcomings of Alexy’s theory and also to discuss the concerns of mainstream jurisprudence. In that sense, this essay presents both Norrie’s and Alexy’s works, using the former to critically assess the latter. In Part 2, I briefly sketch the layout of Pavlakos’s collection to provide an overview of the type of questions that are discussed by the various contributors. Parts 3 and 4 bring into focus two issues that loom large in the collection. The first issue is Alexy’s central thesis on law’s claim to correctness, while the second concerns the duality of law exemplified by the attempts of mainstream jurisprudence to cope with the tension between the positivist notion of law and the idea of justice. In Part 5, I conclude the essay by reflecting on some of the implications of Alexy’s thesis. (shrink)

Over recent years, lawyer misconduct and regulation of the profession have been topics of considerable interest. Yet, when the topic of legal ethics is raised, the focus tends to be on lawyer conduct external to the firm: lawyer conduct in court; lawyer conduct vis-a-vis client; or lawyer conduct vis-a-vis opposing counsel or the judiciary. The recent National Attrition and Re-engagement Study, however, raises a different aspect of legal professional ethics. This Report found a widespread incidence of bullying, intimidation, discrimination and (...) harassment within law firms, primarily affecting though not confined to, female lawyers. Of course, bullying and associated behaviours are not confined to the legal profession. But these behaviours are at odds with a profession that purports to be deeply concerned with the ethical conduct of its members. Arguing that ‘ethics begins at home’, this paper suggests NARS raises uncomfortable questions about legal professional ethics: if law firms cannot treat their own staff members ethically, what does that say about the firm’s approach to ethical conduct more generally? And if this culture is as widespread as the report suggests, what does this say about the ethics of the legal profession as a whole? (shrink)