AALS Spring 1999 NewsletterBack to Index
SPRING 1999 NEWSLETTER
Message from the Section Chair
Developments in the Regulation of Lawyers
Current Developments in Legal Ethics:
Caselaw from October 1998
through March 1999
Recent Books in Professional Responsibility
Empirical Survey on Ethics Consulting
Section Chair: Bruce A. Green, Fordham University School of Law, 140 West
62nd Street, New York, New York, 10023, (212) 636-6851 FAX (212) 636-6899,
Editor: Teresa S. Collett, South Texas College of Law, 1303 San Jacinto,
Houston, Texas 77002-7000, (713) 646-1834, FAX (713) 646-1766, e-mail
This newsletter is a forum for the exchange of information and ideas. The
opinions expressed here do not represent the position of the section of
the American Association of Law Schools.
MESSAGE FROM THE SECTION CHAIR
Bruce Green (Fordham University)
It has been more than a dozen years since my associate dean told me that, as a
new professor, I would have to teach Professional Responsibility. Being naive, I
initially welcomed this as an opportunity to learn a new and interesting
subject. Of course, like almost everyone else assigned to the course, I soon
discovered that there were special challenges to teaching it successfully. For
me, however, these were acceptable because the subject of professional
responsibility presented such fertile ground for scholarship. This was true, in
part, because legal ethics was a comparatively new and uncharted area of serious
academic scholarship. It was also true because, even though this subject applied
to the work of every practicing lawyer, not many lawyers seemed to know much
about it. Within a short time, one could become (relatively speaking) an expert.
Over the past decade, much has changed. A growing number of legal academics are
dedicated to working in the area of legal ethics. For several reasons, legal
ethics has also received more, and more serious, attention within the practicing
bar. Lawyers are increasingly concerned about incurring civil liability or
personal sanctions. Bar associations have expanded the number of programs
devoted to legal ethics. Many states now require lawyers to attend such programs
as part of a mandatory continuing legal education requirement. A handful of
states have even established legal ethics institutes.
Additionally, the pace of developments in the area has quickened. The ALI
recently approved a Restatement of the Law Governing Lawyers. The National
Conference of Bar Examiners has broadened the scope of the Multistate
Professional Responsibility Examination (MPRE). The Conference of Chief Judges
has developed a "National Action Plan on Lawyer Conduct and Professionalism."
The ABA has set in motion a new commission (known as "Ethics 2000") to propose
changes to the ABA Model Rules of Professional Conduct. The ABA has also
appointed committees to examine individual ethics issues that are of special
concern. These include "pay-to-pay" (lawyers' campaign contributions to
government officials and judges) and "multidisciplinary practice" (including, in
particular, the work of lawyers employed by the "Big Five" accounting firms).
All of this means it takes more time to keep up with the field. It also means
that there are many opportunities for us to work with, and contribute to, the
practicing bar. Drawing on our expertise as teachers, we can participate as
speakers at CLE programs or develop training materials for practitioners (see
the column in this newsletter soliciting participation in an upcoming ABA
Section of Litigation project). We can serve on bar association ethics
committees or disciplinary committees. As discussed at our Section's program in
January (summarized by Roy Simon in this newsletter), we can also serve as
expert witnesses or consultants. Many of us find that taking advantage of
opportunities such as these contributes to our teaching and scholarship.
Of course, many of these roles are served by practicing lawyers as well as law
professors. It is useful to step back, then, and ask whether there is also a
unique role for law professors in the area of legal ethics. What can we offer
that practicing lawyers cannot or will not?
Like legal academics in other fields, we can offer the unique perspective that
comes from looking at questions more deeply, comprehensively, objectively, or
just plain academically. The bibliography in this newsletter, prepared by
Professor Fred Zacharias, testifies to our special contribution as scholars.
Another role we can play is as "neutral brokers," bringing together
practitioners, academics and other thoughtful individuals to deliberate and try
to find common ground in areas where professional norms are uncertain or
contested. This was the goal of a recent conference on ethics and procedure
organized at South Texas College of Law by Teresa Collett, who serves as our
Section's chair-elect and newsletter editor. Fordham has sought to do the same
in hosting several ethics conferences, including one on "the delivery of legal
services to low-income persons" whose proceedings will be published this month.
We can also identify issues that require more attention from academics and
practitioners. By way of illustration, I asked members of our Section's
leadership for their quick thoughts about areas of particular concern to them.
Here is what they offered:
Robert F. Cochran, Jr.: "The relationship between professionalism and
multiculturalism needs more attention. Most of the moral appeals by the bar to
lawyers--appeals to serve the poor, to be more civil, and to encourage clients
to consider the interests of others--are made in the name of professionalism,
but I do not think that the concept of professionalism carries much moral force
these days. In the past, an appeal to professionalism was an appeal to
elites--'to one whom much is given, much is required.' It was an appeal that
carried weight with wealthy Episcopalians. But today, not many lawyers feel that
they have been given much. Lawyers from middle and lower classes feel that they
have earned it or that they are owed more. If today, the ideal of
professionalism carries little moral weight, to what can we appeal? I think that
we need to look within the particular moral and religious traditions of members
of the bar for today's answer to the question, 'What is a good lawyer?'"
Teresa Collett: "When the ABA revised Model Rule 8.5 to address disciplinary
authority over lawyers engaged in multi-jurisdictional representation, the
drafters explicitly disavowed any application to transnational practice, leaving
all issues to "agreements between jurisdictions or . . . appropriate
international law." It took the ABA until 1993 to begin to address ethical
issues arising from interstate practice. This was almost 20 years after courts
began struggling with these problems. We can only hope the profession will
provide guidance to lawyers who engage in transnational practices more quickly."
Amy R. Mashburn: "I think that the adoption and enforcement of client-protective
rules of professional responsibility may be among the most important and
effective ways for lawyers in the next century to distinguish themselves from
others who will be permitted to render legal or quasi-legal services. Judges
will have to be more educated and enthusiastic about the role they must play in
enforcing ethical norms; the disciplinary systems will never be adequate and the
so-called 'Professionalism Movement' will not significantly change the status
quo. I suspect future developments in the law and the practice of law will
necessitate clarifying and strengthening the use of the rules of professional
responsibility in non-disciplinary settings."
Kevin C. McMunigle: "Debate about litigation ethics tends to assume we have an
adversary system. We may question whether we should have such a system,
comparing its virtues and vices with the 'cooperative' or 'inquisitorial'
systems of other countries, but rarely do we question the description of our
current system as 'adversarial.' This assumption in turn has a powerful
influence on shaping rules about how individual lawyers should behave in
litigation, since those rules are in part a function of the system in which the
"In fact, our system and the European systems with which it is often compared
are mixed systems combining both adversarial and cooperative/inquisitorial
elements in varying proportions. For example, both civil and criminal litigation
in the United States have strong cooperative components in pretrial discovery.
And the mix of adversarial and cooperative elements in our own system is in
transition. The strengthening of Federal Rule of Civil Procedure 11 over the
past few decades and the more recently enacted mandatory disclosure provisions
under the Federal Rules of Civil Procedure on discovery both mark movement
toward a more cooperative regime in the civil pretrial context."
"In sum, I would like to see debate over litigation ethics reflect a more
careful, nuanced description of our system and acknowledgment of its cooperative
and inquisitorial as well as its adversarial aspects."
Ellen Yaroshefsky: "As earnings including bonuses increase at law firms, monies
to represent low and middle income people have been reduced dramatically. The
situation has been described as 'Legal apartheid.' Law Schools and law firms
must assume responsibility for discussion, not only of pro bono efforts of
firms, but of the need for significant financial contributions by those with
significant earnings. 'Proportionality' should become a theme in examining
Access to Justice."
"On a more rule-oriented note, ethical precepts for government lawyers must be
examined more closely. In particular, conflict rules do not provide adequate
guidance for lawyers in government agencies. An empirical study of the
functioning of government lawyers in various contexts should allow us to
formulate more precise ethical guidelines and rules."
Needless to say, you are all invited to respond to our colleague's suggestions
by undertaking work, or engaging in discussions or debate, in these various
areas. You are also invited to identify additional issues relating to legal
ethics which, in your view, deserve more attention. Just send me a paragraph by
e-mail (email@example.com) or by fax (212-636-6899). Your
contribution will be published in next fall's newsletter.
DEVELOPMENTS IN THE REGULATION OF LAWYERS
Roy Simon (Hofstra University)
Before I begin the rundown, let me urge you to subscribe to the ABA/BNA Lawyers'
Manual on Professional Conduct Current Reports on-line. You get the full text
sooner than you would by mail, the data base is searchable, and you can download
interesting stories directly to your hard drive for use in your word processing
documents (like this one).
Federal Legislation Governing Ethics Rules for Federal Government Lawyers
In October of 1998, in a surprise provision of the Omnibus Consolidated and
Emergency Supplemental Appropriations bill for fiscal 1999 (H.R. 4328), Congress
enacted 28 USC section 530B, the "Citizens' Protection Act," often known as the
McDade Amendment, which provides that Government attorneys "shall be subject to
State laws and rules, and local Federal court rules, governing attorneys in each
State where such attorney engages in that attorney's duties, to the same extent
and in the same manner as other attorneys in that State." The statute broadly
defines "attorney for the Government" to include all attorneys for the
Department of Justice, all independent counsel, and others.
Congress provided that the new law would take effect 180 days after its
enactment (April 19, 1999), but on March 25, 1999, Senate Judiciary Chairman
Orrin Hatch introduced a bill to postpone the statute's effective date for an
additional six months (until October). Senator Hatch strongly opposed the McDade
Amendment, and on January 19th introduced a bill (S. 250) to overturn the
Citizens Protection Act. That bill is pending before the Senate Judiciary
Committee. In that connection, the Senate Judiciary Committee's Subcommittee on
Criminal Justice Oversight held a hearing on March 24th at which several current
or former prosecutors remonstrated that prohibiting direct contacts with
represented persons would cripple with the ability of federal prosecutors to
supervise multistate investigations. However, Professor Geoffrey Hazard
(Pennsylvania) submitted a letter generally supporting the McDade Amendment,
saying that federal government lawyers should be governed by the rules of ethics
that apply to lawyers generally. However, his letter urged the formation of a
special ad hoc commission consisting of members from the Senate, House, DOJ,
Executive Office, the Conference of Chief Justices, and the legal profession
should craft specific authorizations to flesh out the "authorized by law"
exception in Rule 4.2 (DR 7-104) so that prosecutors know exactly what the rules
are for undercover investigations.
Federal Rules of Attorney Conduct
A special committee appointed of the Judicial Conference of the United States
began meeting in March of 1999 to study the desirability of a separate set of
ethics rules for federal courts, which would be called the Federal Rules of
Attorney Conduct. (A draft of these rules was circulated in December of 1997,
and is reprinted at pp. 953-958 of the 1999 edition of S. Gillers & R. Simon,
Regulation of Lawyers: Statutes and Standards.) The Special Committee is not
expected to issue a final report until after the ABA Ethics 2000 Commission has
issued its final report sometime next year. For more information, check the
official website of the United States Courts at www.uscourts.gov or call John
Rabiej, Chief of the Rules Committee Support Office, at (202) 273-1820.
Federal Rules of Civil Procedure
On February 1, 1999, the public comment period closed for proposed amendments to
the Federal Rules of Civil Procedure that would significantly restrict discovery
rights. The scope of automatic mandatory disclosure would be substantially
narrowed. Disclosure of witnesses and documents would be required only if they
supported the disclosing party's position--and even then the information need
not be disclosed if it is aimed solely at impeachment. Moreover, the amended
rule would exempt from disclosure eight categories of proceedings that do not
usually benefit from disclosure, and a party who believes that disclosure is not
appropriate in the circumstances of a particular action can seek a court order
exempting the case.
In addition, the amendments would divide discovery into "attorney-managed"
discovery and "court-managed" discovery. Attorney-managed discovery--discovery
that attorneys could take without a court order--would be limited to matters
relevant to the "claims or defenses" of the parties. Discovery reaching beyond
the claims or defenses of the parties to the "subject matter involved in the
action" would be available only on court order for good cause. Beyond that,
inadmissible information would be discoverable only if it is "relevant" and the
information sought is reasonably calculated to lead to admissible evidence.
The full text of the proposed amendments is available on the web at
www.uscourts.gov (click on "For Public Review," then on "Federal Rules of Civil
Procedure and Evidence").
Restatement of the Law Governing Lawyers
Chief Reporter Charles Wolfram met with the Members Consultative Group and
(separately) with a special ad hoc committee in late February of 1999 (a few
months later than originally scheduled) to review the entire Restatement to make
sure that the text and comments accurately reflect the discussions and motions
made during ALI meetings over the decade-long approval process. Because of the
delay in holding these meetings, the ALI says it now appears "unlikely that the
official text of Law Governing Lawyers can be published before the fall of
1999." For more information, check the ALI's excellent website at www.ali.org.
American Bar Association Developments
The progress of ABA regulatory developments can be followed by checking the
excellent website maintained by the ABA Center for Professional Responsibility
at www.abanet.org/cpr. The site includes draft proposals, records of public
hearings, and many other valuable materials. (If you are not yet a member of the
ABA Center for Professional Responsibility, you should seriously consider
ABA Model Rules of Professional Conduct: Pursuant to a resolution adopted at the
ABA's August 1998 Annual Meeting, the ABA Standing Committee on Ethics and
Professional Responsibility has circulated Discussion Drafts of two alternative
versions of a new Model Rule to regulate so-called "pay-to-play" practices.
("Pay-to-play" refers to a practice under which lawyers allegedly must solicit
or donate campaign funds to government officials to become eligible for
lucrative government legal work.)
Discussion Draft A provides:
A lawyer or law firm shall not make a political contribution or solicit
political contributions for the purpose of obtaining or being considered for a
Discussion Draft B provides:
A lawyer shall not accept a government legal engagement if the lawyer knows that
the legal engagement has been awarded based upon the lawyer's having made or
solicited a political contribution for the benefit of a public official who has
the power to influence the award.
On a closely related track, the Ad Hoc Committee on Judicial Campaign Finance
(see the next entry for more detail) has recommended the following new rule in
the ABA Model Rules of Professional Conduct:
When a lawyer has made a political contribution to a judge's campaign, the
lawyer shall not accept appointment by the judge as a referee, commissioner,
special master, receiver, guardian or as a similar paid official unless the
appointment comports with [applicable rules of judicial conduct] [Section
The public comment period on all of these proposals expired on March 31, 1999,
and formal recommendations will be on the ABA's agenda for the 1999 Annual
Meeting. The proposals will be debated in August at the ABA's 1999 Annual
In addition, the ABA Standing Committee on Professional Discipline is working
with the ABA Standing Committee on Ethics and Professional Responsibility to
amend various ABA Model Rules so that the rules provide for professional
discipline of law firms. (Currently, only New York has a rule subjecting law
firms as entities to professional discipline.) The committees are expected to
propose minor amendments to Rules 5.1, 5.3, 5.6, and 5.7 to effect professional
discipline for law firms. Parallel amendments to Rule 5.4 may come later, after
the ABA Commission on Multidisciplinary Practice has issued its report and the
ABA has defined its policies on multidisciplinary practice.
ABA Model Code of Judicial Conduct: In 1998, the ABA's Task Force on Lawyers'
Political Contributions (appointed in 1997 to study "pay-to-play" issues)
recommended various amendments to the Code of Judicial Conduct to regulate
judicial campaign financing. (The Task Force Report also reiterated the ABA's
longstanding support for merit selection of judges, noting that only two other
countries, Russia and Switzerland, require judges to stand for election.) The
Task Force withdrew its proposals shortly before the ABA's 1998 Annual Meeting,
and ABA President Philip Anderson created an Ad Hoc Committee on Judicial
Campaign Finance to review the recommended amendments and suggest ways to
implement the Task Force's objectives. The Ad Hoc Committee Chair is M. Peter
Moser (who also chairs the ABA's Standing Committee on Ethics and Professional
Responsibility), and its members represent the Judicial Division, the Special
Committee on Judicial Independence, the Standing Committee on Ethics and
Professional Responsibility, and the Task Force on Lawyers' Political
Contributions. The Ad Hoc Committee was assisted by Professor Roy Schotland
(Georgetown), who had been the reporter for the Task Force.
In January of 1999, the Ad Hoc Committee on Judicial Campaign Finance published
a Discussion Draft containing proposals both for legislation (which the ABA does
not have power to implement) and for amendments to the Code of Judicial Conduct
(which the ABA does have power to implement). The Ad Hoc Committee's proposals
cover the same subjects as last year's Task Force report but differ in many
particulars. (A companion proposal to amend the ABA Model Rules of Professional
Conduct is set out above.)
Commission on Multidisciplinary Practice: The ABA Commission on
Multidisciplinary Practice ("MDP"), appointed last year to study and report on
the scope and manner of efforts to provide legal services at nonlawyer
professional service firms (such as accounting firms), has held public hearings
in November, February, and March, and issued a helpful "Background Paper"in
January of 1999. In March, the Commission posted a series of "Hypotheticals and
Models" to focus public discussion. The MDP Commission's reporter, Professor
Mary Daly (Fordham), expects the Commission to issue a final report by June 1,
1999. The report will be discussed at the ABA's August 1999 Annual Meeting, but
it is unlikely that the House of Delegates will take any major action on the
report until people have more time to digest the complex issues the report will
Ethics 2000 Commission: The ABA's "Ethics 2000" Commission, which is
comprehensively reviewing ABA Model Rules of Professional Conduct, has
circulated drafts of numerous provisions for public comment and has held a
number of public hearings. The Commission is working on three tracks: "Track 1,"
the focus of the Commission's current work, is to amend Rules 1.1, 1.6, 1.7,
1.8, 1.9, 1.10, 1.11, 1.12, 2.2, 4.2, and 8.4, and the definition of "informed
consent." "Track 2" consists of a number of rules identified as "most in need of
fixing." "Track 3" consists of seven topics that are "increasingly important in
the future of law practice" and that "implicate multiple rules": (1) ADR; (2)
Mass Torts; (2) Technology; (3) Access to Legal Services; (4) "Pay to Play"; (5)
Interstate and International Practice; (6) Multidisciplinary Partnerships; and
(7) Employed Lawyers. The Commission still expects to issue a final report
before the ABA's 2000 Annual Meeting. The Commission's Reporters are Professors
Nancy Moore (Rutgers-Camden), Tom Morgan (Brigham Young), and Carl Pierce
(Tennessee). For additional information regarding the work to this Commission
see ABA Ethics 2000 Drafts Available under Announcements at page 22.
Hispanic National Bar Association
The Hispanic National Bar Association has passed a resolution formally
committing itself to increasing pro bono legal services for low income
Hispanics. To further this goal, the HNBA adopted three alternative voluntary
standards of pro bono activity for each of its affiliates and members: (a) a
minimum of 50 hours per year of pro bono service through a HNBA recognized
program, (b) a minimum financial contribution to a HNBA pro bono project of $200
per year, or (c) some annual combination of hours and financial contribution. In
addition, the HNBA resolved to make a staff person available to coordinate its
pro bono activities. For information, call (312) 988-5775.
DEVELOPMENTS IN THE STATES
It is difficult to keep track of state developments because few websites are up
to date, especially regarding pending proposals and recent rules amendments, but
I'll hit a few highlights that have come to my attention.
In California (www.calbar.org), the disciplinary system finally has operating
funds again, thanks to the California Supreme Court's emergency funding order.
On December 3, 1998, exercising its inherent judicial powers over bar admission
and discipline, the California Supreme Court ordered every active lawyer in the
state to pay a $173 "regulatory fee" into a special fund earmarked for the
state's lawyer disciplinary system, which has been shut down since last summer
because former Governor Pete Wilson and the California Legislature could not
agree on bar reform legislation. The political stalemate created "an
unprecedented emergency" that placed the public welfare, the integrity of the
legal profession, and the courts "at grave risk," the Court said. Meanwhile, the
Legislature and the new Governor, Gray Davis, are still working on bar reform
legislation that would reduce bar dues and delineate appropriate bar functions.
(One adverse side effect of the bar shutdown is that the State Bar's web
page--one of the best state bar websites in the country--has not been updated in
nearly a year.)
District of Columbia (www.dcbar.org): The D.C. Bar's Rules of Professional
Conduct Review Committee is proposing to amend Rule 1.15, which governs advance
retainers for legal fees. The proposed amendments to the Rule and Comment, plus
a policy memorandum explaining the proposals, were circulated for public comment
on the Bar's website (www.dcbar/whatsnew/rule115/rule115.html). The deadline for
comment was February 24, 1999. The existing D.C. Rule provides that advance
retainers are the property of the lawyer and do not have to be segregated into a
trust account. The proposed amendment would change the D.C. rule to provide, in
pertinent part: "Advances of unearned legal fees and unincurred costs shall be
treated as property of the client . . . until earned or incurred unless the
client consents to a different arrangement." After reviewing the public
comments, the Rules Review Committee will develop a final proposal for
consideration by the D.C. Bar's Board of Governors, which will in turn determine
whether to recommend a proposal to the District of Columbia Court of Appeals.
Florida (www.flabar.org): The Florida Bar is considering four rule changes to
control disbarred lawyers. A proposed change to the pro hac vice rule, Rule
1-3.2, would prohibit lawyers who were disbarred or resigned in Florida but were
still licensed in another state from using that out-of-state license as a basis
for seeking pro hac vice admission in Florida cases. An amendment to the trust
account rule, Rule 3-7.12, would require a lawyer who is resigning from the Bar
for disciplinary reasons to submit to a trust account audit. An amendment to
Rule 3-5.1(g) would require lawyers who are suspended, disbarred or resigned to
notify not only their clients (which is already required) but also opposing
counsel and judges. An amendment to Rule 3-7.10, which governs reinstatement of
suspended lawyers, would permit a court to consider their conduct since joining
the Bar, not just during their suspension. In addition, Florida is trying to
draw a "bright line" in Rule 4-7.2 to specify what a lawyer may offer as an
inducement to attract or keep a client. The proposed amendments were drafted by
the Florida Bar's Disciplinary Procedures Committee and presented in February to
the Bar's Board of Governors. The proposals now go to the Rules Committee for
final drafting and could come back to the board for approval at its April
Separately, the Florida Bar's Standing Committee on the Unlicensed Practice of
Law held a public hearing on April 23, 1999 in connection with a request for an
advisory ethics opinion on two questions: (1) Does it constitute the unlicensed
practice of law for an out-of-state attorney to represent an individual in
Florida before an NASD arbitration panel in a matter involving non-securities
Florida law issues? and (2) Does it constitute the unlicensed practice of law
for an out-of-state attorney to represent another in Florida in a proceeding
before the American Arbitration Association?
Finally, the latest figures on pro bono in Florida, released on March 15th, show
that the number of pro bono hours lawyers provided to Florida's poor has
increased 76 percent since the Supreme Court's voluntary pro bono plan began in
1993. In addition, direct monetary contributions to legal aid organizations have
risen 112 percent since the Supreme Court adopted a goal that each Bar member
perform 20 hours of pro bono work for the poor or contribute $350 to a legal aid
organization. In 1997-98, Florida lawyers reported 989,336 hours of pro bono
work and more than $1.8 million in contributions to legal aid organizations.
Georgia (www.gabar.org): On March 5, 1999, Georgia adopted new Rules of
Professional Conduct that use the numbering system and basic language of the ABA
Model Rules of Professional Conduct but blend in elements of the old ABA Model
Code of Professional Responsibility, the Restatement of the Law Governing
Lawyers, and Georgia's own cooking. For example, Rule 1.1 tracks ABA Model Rule
1.1 but also defines "competence" in the text to mean that a lawyer "shall not
handle a matter which the lawyer knows or should know to be beyond the level of
competence without associating another lawyer who the original lawyer believes
to be competent to handle the matter in question." (Regrettably, neither the
text nor Comment says that client consent is required to associate another
lawyer.) Rule 1.3 defines "diligence" to mean that a lawyer "shall not without
just cause to the detriment of the client in effect wilfully abandon or wilfully
disregard a legal matter entrusted to the lawyer." Rule 1.6 permits disclosure
to avoid "substantial financial loss to another as a result of client criminal
conduct or third party criminal conduct clearly in violation of the law." Rule
1.7 uses the Restatement's language, "substantial risk," to define conflicts.
Each rule is followed by a line stating the maximum penalty for violating the
rule. Strangely, Georgia has apparently adopted the Comments to the ABA Model
Rules virtually verbatim, with no explanations of Georgia's particular language.
Thus, some of the Comments do not fit the rules that they purport to describe.
Illinois (www.isba.org) is considering a new rule, Rule 5.5(c), that would
prohibit a lawyer from participating in or assisting "a firm or other entity
that offers or provides lawyer services primarily by telephonic media unless the
firm or other entity is registered under applicable Supreme Court Rules." A
parallel proposal for a new Supreme Court Rule 731 would provide that a lawyer
shall not "participate in or assist an entity in providing lawyers services
primarily or principally by telephonic or other electronic media unless the
entity is a law firm as defined by Illinois Rules of Professional Conduct and
has a certificate of registration issued to it by the Administrator of the
Attorney Registration and Disciplinary Commission." To obtain a certificate of
registration, the telephonic firm would have to submit an affidavit from its
partners stating that the firm and its shareholders or partners and employees
consent to submit to the jurisdiction and laws of the state of Illinois with
regard to all matters relating to or arising out of the lawyer services offered
or provided to persons in Illinois, including compliance with the Illinois Rules
of Professional Conduct in all services rendered in Illinois, and that only
Illinois licensed and registered lawyers in good standing will provide lawyer
services regarding Illinois law to persons in Illinois.
Separately, in February of 1999 the Illinois State Bar Association adopted
minimum standards for lawyers representing defendants in death penalty cases.
(Currently, any licensed lawyer may represent a death penalty defendant,
regardless of prior experience.) However, the standards will not formally take
effect unless they are approved by the legislature or incorporated into court
rules by the Illinois Supreme Court. The standards provide that death penalty
defendants must be represented by two experienced criminal trial attorneys. The
lead counsel must have at least five years of criminal litigation experience,
must have tried no fewer than eight felony jury trials (including at least two
homicide cases), and must be trained or have experience in other aspects of
defending capital cases.
Massachusetts (www.massbar.org or www.bostonbar.org) has adopted a new pro bono
rule, Rule 6.1, effective February 1, 1999. In addition, to reflect changes in
the Massachusetts Prosecution and Defense Standards, Massachusetts has amended
Rule 1.7 Comments 6 and 7, Rule 3.8(h), (i) & (j), Rule 3.4(g), and Rule 8.4
Comments 4 and 5.
Michigan (www.michbar.org): On October 15, 1998, the Michigan Supreme Court
(over a strong dissent) rejected a proposed rule prohibiting sex with clients,
but amended the Comment to Rule 1.8 to make clear that sex with clients is
improper. The State Bar's Ethics Committee had opposed the rule on grounds that
sex with clients was already covered by Rule 1.7, but the Bar's Board of
Commissioners nevertheless voted to send a proposed rule on sex with clients to
the bar's legislative body, which overwhelmingly approved it and forwarded it to
the Michigan Supreme Court. The new Comment to Rule 1.8 provides as follows:
Sexual Relations with Clients. After careful study, the Supreme Court declined
in 1998 to adopt a proposal to amend Rule 1.8 to limit sexual relationships
between lawyers and clients. The Michigan Rules of Professional Conduct
adequately prohibit representation that lacks competence or diligence, or that
is shadowed by a conflict of interest. With regard to sexual behavior, the
Michigan Court Rules provide that a lawyer may be disciplined for "conduct that
is contrary to justice, ethics, honesty, or good morals." MCR 9.104(3). Further,
the legislature has enacted criminal penalties for certain types of sexual
misconduct. In this regard, it should be emphasized that a lawyer bears a
fiduciary responsibility toward the client. A lawyer who has a conflict of
interest, whose actions interfere with effective representation, who takes
advantage of a client's vulnerability, or whose behavior is immoral risks severe
sanctions under the existing Michigan Court Rules and Michigan Rules of
New York (www.nysba.org) expects that any day now (probably before you read
this) the courts will approve comprehensive proposals to amend the Code of
Professional Responsibility that were forwarded to the Appellate Divisions more
than two years ago, in March of 1997. In addition, a "pay-to-play" proposal
circulated by the courts in October of 1997 is still under consideration by the
courts, and the New York State Bar Association has already adopted two Ethical
Considerations condemning and regulating pay-to-play practices. (In New York,
the courts promulgate only the DR's, not the EC's, so the State Bar can adopt
new EC's without waiting for court approval.) The new EC's are contained in a
lengthy report issued by a State Bar Task Force in November of 1998. In January
of 1999, a different State Bar Task Force issued a major report on
multidisciplinary practice, calling mainly for further study.
Tennessee (www.tba.org) is still considering proposed new Rules of Professional
Conduct. The public comment period expired on September 1, 1998. Since then, the
Tennessee Bar Association Committee for the Study of Standards of Professional
Conduct has been reviewing the comments and preparing amended proposals.
Texas (www.texasbar.com): In a November 1998 referendum, Texas lawyers voted to
amend Rule 7.04, which governs claims of specialization. Under the old rule, a
lawyer who listed practice areas was required to state, "with respect to each
area advertised in which the lawyer has not ben awarded a Certificate of Special
Competence by the Texas Board of Legal Specialization," that the lawyer is "Not
Certified by the Texas Board of Legal Specialization." The amended rule
eliminates the "not certified" requirement. But there's a catch: various lawyers
challenged the legality of the referendum, and on March 24 and 25 a Special
Master of the Texas Supreme Court held a hearing in which State Bar employees
and other witnesses testified about how the referendum was administered. The
Special Master will report to the Supreme Court, which will decide whether to
uphold the referendum, order a new referendum, or tell the State Bar not to act
on the referendum or hold a new one. The Texas State Bar hopes all of this will
happen quickly, but in the meantime the "old" Rule 7.04 remains in effect.
Virginia (www.vsb.org) adopted new Rules of Professional Conduct on January 25,
1999, to become effective January 1, 2000. After each rule is a "Committee
Comment" explaining the differences between the new rule and the corresponding
ABA Model Rule of Professional Conduct. There are many differences, in both the
text and comments. The website also contains a "Comparison Chart" showing how
the new rules differ from Virginia's existing Code of Professional
Responsibility. In another major development, the Virginia State Bar has chosen
a woman as its President-elect for the first time in history.
CURRENT DEVELOPMENTS IN LEGAL ETHICS CASELAW
FROM OCTOBER 1998 THROUGH MARCH 1999
Carol A. Needham (Saint Louis University)
Admission to the Bar - Military Desertion
Florida Board of Bar Examiners (In re J.E.G.R.), 725 So. 2d 358 (Fla. 1998).
A military conviction for desertion is equivalent to a felony for purposes of
evaluating the applicant's fitness to practice law in Florida. The applicant had
not established sufficient rehabilitation to justify admission to the bar. The
desertion was aggravated by the fact that it occurred after the applicant's unit
was about to be deployed as part of Desert Storm and by the fact that he had
received the benefits of being a Marine reservist for more than five years. The
applicant will be able to reapply for admission in one year, after establishing
or restoring his eligibility for U.S. citizenship.
Advertising and Solicitation
Amelkin v. McClure, No. 96-5942, 1999 WL 73993 (6th Cir. Feb. 17, 1999).
The Sixth Circuit held unconstitutional a Kentucky statute which prevented
lawyers and chiropractors from obtaining access to police reports of traffic
accidents, but which allowed the reports to be made available to the news media.
Applying the commercial speech test in Central Hudson Gas & Electric Corp. v.
Public Service Commission of New York, 447 U.S. 557 (1980), the appellate court
majority refused to characterize the victim's receipt of mail as an invasion of
privacy, and decided that allowing media access to the reports undercut the
asserted governmental interest in protecting accident victim's privacy.
Bar Fees - Inherent Power
In re Attorney Discipline System, 19 Cal.4th 582, 967 P.2d 49, 79 Cal. Rptr.2d
836 (Cal. 1998).
Judicial imposition of a $173 "regulatory fee" to be paid by every active member
of the California bar into a fund to revive the state's discipline system does
not violate the separation of powers doctrine, or invade the legislature's
exclusive power over taxation and appropriation, because the court has inherent
judicial authority over matters relating to bar admission and discipline.
Conflicts of Interest - Class Action Settlement
Lazy Oil Co. v. Witco Corp., 166 F.3d 581 (3rd Cir. 1999).
In the context of an appeal from the District Court's approval of the settlement
of a class action antitrust case, the Third Circuit decided that the lawyers
hired to initiate the class action need not disqualify themselves from
representing the remaining plaintiffs after settlement creates a rift among
class representatives, unless prejudice to the opponents of the settlement is
sufficiently substantial to outweigh the benefits of such continued
representation. The district court did not abuse its discretion in approving the
settlement and its order refusing to remove or disqualify class counsel was
Conflicts of Interest - Former Counsel for Opponent's Corporate Parent
Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft L.L.P., 69 Cal. App.4th
223, 81 Cal. Rptr.2d 425 (Cal. Ct. App. 1999).
A law firm's representation of a corporation and its insurance underwriters in
matters involving the corporation, which allowed the firm to acquire
confidential information about the corporation, disqualifies it from
representing a client in a related dispute with the corporation's subsidiary.
Conflicts of Interest - Former In-House Counsel for Opponent
Jamaica Public Service Co. Ltd. v. AIU Insurance Co., 1998 WL 885062 (N.Y. Dec.
Although one of the attorneys representing plaintiff had previously been
in-house counsel for a different company in the defendant's corporate family,
the court decided that New York's DR 5-108 was not violated, since the
attorney's work while in-house neither involved the defendant nor touched on
coverage disputes similar to those involved in the current lawsuit.
In addition, the plaintiff's law firm's use of generally known information about
the former in-house lawyer's former client also did not require disqualification
of the law firm, since that information was easily available in trade
publications and in filings with state and federal regulators.
Conflicts of Interest - Imputation
In re American Home Products Corp., Numbers 97-0654 and 97-0655, 1999 WL 2531
(Tex. Dec. 31, 1998).
A law firm's disqualification from representing plaintiffs in mass tort
(Norplant contraceptive) litigation for failing to screen a "freelance
consultant" who had worked on the litigation with defendant's counsel by
interviewing potential witnesses, investigating individual plaintiffs and
assessing jury selection process in the forum county was not imputed to the
Ex parte Terminix International Co., No. 1971546, 1998 WL 890286 (Ala. Dec. 23,
Co-counsel relationship between law firms does not constitute one "firm" that
would require imputation of conflict from one firm to other firm for purposes of
Alabama's Rule 1.10. In the absence of clear evidence of improper sharing of
confidential information, the co-counsel was not disqualified.
IMC Global, Inc. v. Moffett, Nos. Civ. A 16387-NC and Civ. A 16393-NC, 1998 WL
842312 (Del. Ch. Nov. 12, 1998).
A conflict of interest which led a law firm to withdraw from representing a
defendant is not imputed to other firms representing co-defendants merely
because all the firms had shared potentially privileged information pursuant to
a joint defense agreement.
Conflicts of Interest - Paying Client's Expenses
In re Minor Child K.A.H., 967 P.2d 91 (Alaska 1998).
Even when the client has been evicted and is living in a car, Alaska's Rule
1.8(e) does not allow attorneys to advance living expenses to their clients. The
Supreme Court of Alaska also decided that Rule 1.8(e) does not
unconstitutionally impede access to the courts.
Conflicts of Interest - Third Parties
Hawkes v. Lewis, 586 N.W.2d 430 (Neb. 1998).
A plaintiff who had never been a client of an opposing party's lawyer lacked
standing to seek the disqualification of that lawyer based on his alleged
conflict of interest in formerly representing both of the co-defendants in this
case. The court decided that the facts of this case fall outside the parameters
of any exception to the general rule on standing. For example, here the
challenged conduct does not prejudice the fairness of the proceedings.
In re Kindhart, 160 F.3d 1176 (7th Cir. 1998).
The Seventh Circuit decided that, although its decision was well-intentioned,
the district court had abused its discretion when it upheld the bankruptcy
court's computation of attorneys' fees in a Chapter 13 bankruptcy case using a
presumptively reasonable $800 base fee established ten years earlier that may be
outdated in light of increases in costs of practice. The case was remanded so
that the lower court could make reasonable and fair adjustments in the fees
awarded to attorneys handling bankruptcies.
Law Firm Practice
Geary v. Hunton & Williams, 684 N.Y.S.2d 207 (N.Y. App. Div. 1999).
A lawyer's claim for fraudulent inducement against his former firm based on
allegations that the firm misrepresented the size of its banking litigation
practice, seeking recovery for the loss of enhanced earning potential that the
lawyer would have realized if the practice had been as represented or if the
lawyer had taken a job with a different employer, failed because the damages are
inherently speculative and unrecoverable. The court affirmed summary judgment
for the firm.
Malpractice - Accrual of Claim
Lucey v. Law Offices of Pretzel & Stouffer Chtd., 234 Ill. Dec. 612, 703 N.E.2d
473 (Ill. App. Ct. 1998).
Client's malpractice claim based on a law firm's allegedly inaccurate advice
(regarding soliciting his former employer's accounts) which caused client to be
sued by his former employer does not accrue until the client incurs damages
directly attributable to counsel's neglect. Thus, the malpractice claim will not
accrue until the underlying litigation is resolved adversely to the client.
Malpractice - Burden of Proof Regarding Causation
Galanek v. Wismar, 68 Cal. Pp.4th 1417, 81 Cal. Rptr.2d 236 (Cal. Ct. App.
The client's injuries in a personal injury case were allegedly caused by a
defect in the construction of the driver's seat of the client's car. When her
lawyer negligently allowed a third party to destroy the car, the burden of proof
on causation shifted to the lawyer in the later malpractice action, since the
lawyer's spoilation of evidence had made it impossible for the client to
establish that she would have prevailed in the personal injury case.
Malpractice - Comparative Negligence Defense
Clark v. Rowe, 428 Mass. 339, 701 N.E.2d 624 (1998).
In a case of first impression, the Massachusetts Supreme Court recognized a
comparative negligence defense in malpractice cases and denied any recovery to a
client whose negligence caused 70% of her injury.
Malpractice - Criminal Cases
Wiley v. San Diego County, 966 P.2d 983 (Cal. 1998).
A necessary element of a malpractice case brought by a client against the lawyer
who unsuccessfully defended him in a criminal matter is the client's actual
innocence of the crimes for which he was convicted.
Malpractice - Settlement Recommendation
Thomas v. Bethea, 351 Md. 513, 718 A.2d 1187 (1998).
The Maryland Court of Appeals affirmed the reversal of a judgment N.O.V. which
the trial court had entered in favor of the attorney in a malpractice case. The
court ruled that, under Maryland law, a lawyer can be liable for recommending
that his client settle a case under circumstances in which no reasonable lawyer
would have made the same judgment call. Here, allegedly upon the lawyer's
recommendation, the client gave a general release of all three defendants and
accepted $2,500 to settle a lead paint poisoning case which the jury later
determined had been worth $125,000.
Wood v. McGrath, North, Mullin & Kratz, 256 Neb. 109, 589 N.W.2d 103 (1999).
Judgmental immunity does not protect a lawyer who fails to inform his client,
before a settlement is signed, that a legal issue relevant in her case--here,
whether unvested stock options are part of the marital estate and the correct
treatment of potential capital gains taxes--has not yet been settled in the
forum state, especially when that issue has been resolved in the client's favor
in other jurisdictions.
Malpractice - Statute of Limitations
Silvestrone v. Edell, 721 So. 2d 1173 (Fla. 1998).
Florida's two-year statute of limitations for legal malpractice actions arising
out of litigation begins to run after a final judgment has been entered in the
Crouse v. Brobeck, Phleger & Harrison, 67 Cal. App.4th 1509, 80 Cal. Rptr.2d 94
(Cal. Ct. App. 1998).
The fact that a lawyer continued to represent a client after leaving a law firm
does not extend the limitation period on the client's malpractice claim against
the lawyer's former partners.
Privilege - Internet
Seidl v. Greentree Mortgage Co., 30 F.Supp. 1292 (D. Colo. 1998).
The absolute privilege for statements made in connection with a judicial
proceeding does not protect an attorney who uses the Internet to spread
publicity about her client's lawsuit to persons having no connection to the
litigation by posting statements to the client's web page, since such postings
are analogous to statements made to newspapers and at press conferences.
However, the lawyer's allegation that the opposing party had "forged" her
client's Internet address to engage in bulk e-mail advertising (i.e., spamming)
was a statement of opinion and thus not defamatory.
Retaliatory Discharge - Law Firm Associate
Jacobson v. Knepper & Moga, P.C., 706 N.E. 2d 491 (Ill. 1998).
Extending its holding in Balla v. Gambro, Inc., 145 Ill.2d 492, 164 Ill. Dec.
892, 584 N.E.2d 1354 (1985) to lawyers working at law firms, the Illinois
Supreme Court decided that a lawyer employed as an associate at a law firm, who
was terminated for notifying a partner about the firm's improper filing of
complaints in consumer debt collection cases which violated relevant venue
provisions, cannot sue for retaliatory discharge, since the Illinois Rules of
Professional Conduct require the lawyer to report his knowledge of the firm's
Trial Publicity - Comments on Pending Litigation
In re Morrissey, 168 F.3d 134 (4th Cir. 1999).
In a unanimous opinion, the U.S. Court of Appeals for the Fourth Circuit upheld
Local Rule 57 (C) of the U.S. District Court for the Eastern District of
Virginia, which restricts comments lawyers are allowed to make about pending
criminal cases in federal court and upheld the lawyer's liability for criminal
contempt for comments he made to the press.
The court rejected the lawyer's argument that the use of the "reasonable
likelihood" of prejudice standard used in Rule 57 (C) to assess the lawyer's
speech was unconstitutional, finding that the "substantially likely to
prejudice" standard articulated in Gentile v. Nevada State Bar, 501 U.S. 1030
(1991) is not the only permissible standard.
Fred Zacharias (University of San Diego)
Alschuler, How to Win the Trial of the Century: the Ethics of Lord Brougham and
the O.J. Simpson Defense Team, 29 McGeorge L. Rev. 291 (1998).
Aron, Defining a Theory of Lawyers Ethics, 34 Land & Water L. Rev. 125 (1999).
Averill, The Revised Lawyer Discipline Process in Arkansas: a Primer and
Analysis, 21 U. Ark. Little Rock L. Rev.13 (1998).
Baker, Ethical Limits on Attorney Contact with Represented and Unrepresented
Officials: the Example of Municipal Zoning Boards Making Site-Specific Land Use
Decisions, 31 Suffolk U. L. Rev. 349 (1997).
Baruch Report, A Report of the Perceptions and Experiences of Lawyers, Judges,
and Court Employees, 1997 Ann. Surv. Am. L. 415 (1997).
Berenson, Can We Talk?: Impediments to Intergenerational Communication and
Practice in Law School Elder Law Clinics, 6 Elder L.J. 185 (1998).
Berenson, Politics and Plurality in a Lawyer's Choice of Clients: the Case of
Stropnicky v. Nathanson, 35 San Diego L. Rev. 1 (1998).
Black and Rothman, Shall We Kill All the Lawyers First?: Insider and Outsider
Views of the Legal Profession, 21 Harv. J.L. & Pub. Pl'y 835 (1998).
Blake, Rules and Guidelines for the Management of Attorney's Fees, 27 U. Balt.
L. Rev. 1(1997).
Brand, Professional Responsibility in a Transnational Transactions Practice, 17
J.L. & Com. 301 (1998).
Chavkin, Am I My Client's Lawyer?: Role Definition and the Clinical Supervisor,
51 SMU . Rev. 1507 (1998).
Chinaris and Tarbert, Professional Responsibility, 23 Nova l. rev. 1707 (1998).
Cohen, When Law and Economics Met Professional Responsibility, 67 Fordham L.
Rev. 273 (1998).
Cook, Mend It or End It? What to Do with the Independent Counsel Statute, 22
Harv. J.l. & Pub. Pol'y 279 (1998).
Cramton and Knowles, Professional Secrecy and Its Exceptions: Spaulding v.
Zimmerman Revisited, Minn. L. Rev. 63 (1998).
Daicoff, Asking Leopards to Change Their Spots: Should Lawyers Change?, 11
Geo.J. legal Ethics 547 (1998).
Days, Executive Branch Advocate v. Officer of the Court: the Solicitor General's
Ethical Dilemma, 22 Nova L. Rev. 677 (1998).
Dickerson, Ethics on the Web: An Annotated Bibliography of Legal Ethics Material
on the Internet, 28 Stetson L. Rev. 369 (1998).
Eisenberg, The Rise and Fall of the Entire Controversy Doctrine as Applied to
Attorney Malpractice Actions, 28 Seton Hall l. Rev. 1292 (1998).
Fish, The Use of the Illinois Rules of Professional Conduct to Establish the
Standard of Care in Attorney Malpractice Litigation: an Illogical Practice, 23
S. Ill. U.L.J. 65 (1998).
Freiman, Steps Toward a Pedagogy of Improvisation in Legal Ethics, 31 J.
Marshall L. Rev. 1279 (1998).
Flowers, What You See Is What You Get: Applying the Appearance of Impropriety
Standard to Prosecutors, Mo. L. Rev. 699 (1998).
Geu, Chaos, Complexity and Coevolution: the Web of Law, Management Theory, and
Law Related Services at the Millennium [pts. 1 & 2], 65 Tenn L. Rev. 925 (1998).
Greater New Yorker Chapter of the American Corporate Counsel Association, Report
on Selection of Outside Counsel by Corporations, Am. J. Trial Advoc. 95 (1998).
Hamilton and Coan, Are We a Profession or Merely a Business?: The Erosion of the
Conflicts Rules Through the Increased Use of Ethical Walls, 27 Hofstra L. rev.
Harris and Valihura, Outside Counsel as Director: the Pros and Potential
Pitfalls of Dual Service, 53 Bus. Law 479 (1998).
Hay, Contingent Fees, Principal-Agent Problems, and the Settlement of
Litigation, 23 Wm. Mitchell L. Rev. 43 (1997).
Hazard, The County Courthouse No Longer Looms over the Community, 51 S.M.U. L.
Rev. 1559 (1998).
Hellman, A Better Way to Make State Legal Ethics Opinions, 22 Okla. City u. L.
Rev. 973 (1997).
Hobbs and Hobbs, Family Businesses and the Business of Families: a Consideration
of the Role of the Lawyers, 4 Tex. Wesleyan L. Rev. 153 (1998).
Hrick, Lawyers Worry Too Much about Transmitting Client Confidences by Internet
E-mail, 11 Geo.J. legal Ethics 459 (1998).
Huang and Muriel, Spoliation of Evidence: Defining the Ethical Boundaries of
Destroying Evidence, 22 Am. J. Trial Advoc. 191 (1998).
Hutchinson, Legal Ethics for a Fragmented Society: Between Professional and
Personal, 5 Int'l J. legal Prof. 175 (1998).
Hylton, The Wisconsin Lawyer in the Gilded Age: a Demographic Profile, 1998 Wis.
L. Rev. 765 .
Hyman, Slip-Sliding into Mediation: Can Lawyers Mediate Their Clients'
Problems?, 5 Clin. L. Rev. 47 (1998).
Jones, A Lawyer's Ethical Duty to Represent the Unpopular Client, 1 Chapman L.
Rev. 105 (1998).
Liotti, Does Gideon Still Make a Difference?, 1 N.Y. city L. Rev. 105 (1998)
Kaye, Lawyering for a New Age, 67 Fordham L. Rev. 1 (1998).
Kidd, Survey of 1997 Developments in the Law of Professional Responsibility, 31
Ind. L. Rev.723 (1998).
Molot, How Changes in the Legal Profession Reflect Changes in Civil Procedure,
84 Va. L. Rev. 955 (1998).
Morgan, Whose Lawyer Are You Anyway?, 23 Wm. Mitchell L. Rev. 11 (1997).
Orts, Shirking and Sharking: a Legal Theory of the Firm, 16 Yale L. & Pol'y Rev.
Ott, Professional Responsibility, 44 Wayne L. Rev. 995 (1998).
Paulsen, Who "Owns" the Government's Attorney-Client Privilege?, 83 Minn. L.
Rev. 473 (1998).
Pearce, Hickey, and Burke, African Americans in Large Law Firms: the Possible
Cost of Exclusion, 42 How. L.J. 59 (1998).
Pollock, Lawyers and Judges as Catchers in the Rye, 34 Tulsa L.J. 1 (1998)
Ribstein, Ethical Rules Agency Costs, and Law Firm Structure, 84 Va. L. Rev.
Rosenfeld, Whose Decision Is It Anyway?: Identifying the Medicaid Planning
Client, 6 Elder L.J. 383 (1998).
Rostain, Ethics Lost: Limitations of Current Approaches to Lawyer Regulation, 2
N.Y. City L. Rev. 105 (1998).
Rubenstein, Queer Studies II: Some Reflections on the Study of Sexual
Orientation Bias in the Legal Profession, 8 UCLA Women's L.J. 379 (1998).
Silver and Baker, I Cut, You Choose: the Role of Plaintiffs' Counsel in
Allocating Settlement Proceeds, 84 Va L. Rev. 1465 (1998).
Simon, "Thinking like a Lawyer" about Ethical Questions, 27 Hofstra L. rev. 1
Sisk, Iowa's Legal Ethics Rules-It's Time to Join the Crowd, 47 Drake L. Rev.
Strauss, Why It's Not Free Speech Versus Fair Trial, 1998 U. Chi. Legal F. 109.
Thornburgh, Junk Science-the Lawyer's Ethical Responsibilities, 25 Fordham Urb.
L.J. 449 (1998).
Walthall, What Do You Mean"We,"Kemo Sabe? Partnership Law and Client
Responsibilities of Office Sharing Lawyers, 38 Cumb. L. Rev. 601 (1997-1998).
Wilkins, Identities and Roles: Race, Recognition, and Professional
Responsibility, 57 Md. L. Rev. 1502 (1998).
Wills, The Ethical Utilization of Paralegals in Ohio. 45 Clev. St. L. Rev. 711
Wolfram, The Boiling Pot of Lawyer Conflicts in Bankruptcy, 18 Miss. C. L. Rev.
Yasser and Schiller, Gender Equity in Interscholastic Sports: the Final Saga:
the Fight for Attorneys' Fees, 34 Tulsa L.J. 85 (1998)
Zeman, Estate Planning: Ethical Considerations of Using Medicaid to Plan for
Long-Term Medical Care for the Elderly, 13 Quinnipiac Prob. L.J. 187 (1998).
Comment, An Examination of the New York State Board of Law Examiners' Policy
Towards Individuals with Learning Disabilities, 62 Alb. L. Rev.737 (1998).
Comment, Show Me the Money: the Debate over Creditors' Postpetition Attorneys'
Fees, 14 Bankr. Dev. J. 425 (1998).
Comment, Gag Orders and the Ultimate Sanction, 18 Loy. L.A. Ent. L.J. 629
Comment, Rite of Professional Passage: a Case for the Liberalization of Student
Practice Rules, 82 Marq. L. Rev. 205 (1998).
Comment, Intellectual Property-the Pitfalls of Attorney-Client Waiver in Patent
Law, 39 S. Tex. L. Rev. 769 (1998).
Comment, Lawyers Do It for Free? An Examination of Mandatory Pro Bono, 29 Tex.
Tech L. Rev. 1898 (1998).
Comment, Why Mandatory IOLTAs Should Be Eliminated, 4 Tex. Wesleyan L. Rev. 123
Comment, A Call for a Uniform Standard of Professional Responsibility in the
Federal Court System: Is Regulation of Recalcitrant Attorneys at the District
Court Level Effective?, 66 U. Cinn. L. Rev. 901 (1998).
Comment, Changing Standards of Third-Party Liability in Estate Planning, 66
U.M.K.C. L. Rev. 863 (1998).
Comment, Law Student Advocates and Conflicts of Interest, 73 Wash. L. Rev. 731
Comment, A Proposed Conflict of Interest Rule for Attorney-Mediators, 73 Wash.
Comment, Attorney Fees in State Constitutional Litigation: a Proposed
Legislative Reform for Oregon, 34 Willamette L. Rev. 57 (1998).
Note, Curtailing Post-Representation Extrajudicial Speech, 47 Drake L. Rev. 379
Note, The Comprehensive Environmental Response Compensation and Liability Act
(CERCLA) and the Evaluation of Confidentiality for the Environmental Attorney, 9
Fordham envtl.373 (1998).
Note, Strange Bedfellows? Married Lawyers and Conflicts of Interest, 11 Geo.J.
legal Ethics 753 (1998).
Note, Loyalty to the Profession: a Call for a Rule Prohibiting Sexual
Relationships Between Attorneys and Their Clients, 41 How. L.J. 181 (1997).
Note, Inspiring Global Professionalism: Challenges and Opportunities for
American Lawyers in China, 73 Ind. L.J. 1247 (1998).
Note, The Calculus of Confidentiality: Ethical and Legal Approaches to the
Labyrinth of Corporate Attorney-Client Communications via E-mail and the
Internet, 31 Marshall L. Rev. 1279 (1998).
Note, Don't Walk the Line: Ethical Considerations in Preparing Witnesses for
Deposition and Trial, 18 Rev. Litig. 135 (1998).
Note, Queer Studies I: an Examination of the First Eleven Studies of Sexual
Orientation Bias by the Legal Profession, 8 UCLA Women's L.J. 343 (1998).
Note, Justice or Injustice for the Poor?: A Look at the Constitutionality of
Congressional Restrictions on Legal Services, 6 Wm. & Mary Bill of Rts. J. 827
Note, Should Minnesota Abandon the Per Se Rule Against Law Firm Noncompetition
Agreeements, 23 Wm. Mitchell L. Rev. 133 (1997).
Symposium, Law and the Media, 47 Emory L.J. 859 (1998).
Symposium, Ethics: Beyond the Rules, 67 Fordham L. Rev. 691 (1998).
Symposium, Lawyering for Poor Communities in the Twenty-First Century, 25
Fordham Urb. L.J. 673 (1998).
Symposium, Government Lawyering, 61 Law & Contemp. Prob. 1 (1998).
Symposium, Should the Family Be Represented as an Entity?, 22 Seattle U. L. Rev.
Symposium, Litigation Ethics and Professionalism, 28 Stetson L. Rev. 247 (1998).
Symposium. Public Mistrust of the Law, 66 U. Cin. L. Rev. 801 (1998).
Symposium, The Law and Economics of Lawyering, 84 Va. L. Rev. 1411 (1998).
Symposium, The Rights and Duties of Partners and Their Firms, 55 Wash & Lee L.
Rev. 997 (1998).
RECENT BOOKS IN PROFESSIONAL RESPONSIBILITY
Edward C. Brewer, III (Chase, Northern Kentucky)
This list covers late 1997 through early 1999, and includes some foreign sources
from as early as 1996 because of new access to OCLC (online catalog) resources.
Abel, Richard, ed., Lawyers: A Critical Reader (1997) (New Press, New York)
American Bar Association, Ethics, Lawyers, and the Public Sector (1999) (Salkin,
Patricia E., ed.)
American Bar Association, Center for Professional Responsibility, Working Group
on Lawyer Conduct & Professionalism, A National Action Plan on Lawyer Conduct
and Professionalism, Adopted January 21, 1999) (1999)
American Bar Association, Center for Professional Responsibility, Model Code of
Professional Responsibility (1999)
American Bar Association, Section of Litigation, Ethics Beyond the Rules: Report
of the Ethics-Beyond the Rules Task Force (1998)
American Bar Association, Task Force on Lawyers' Political Contributions:
Burns, Robert; Geraghty, Thomas; & Lubet, Steven, Exercises and Problems in
Professional Responsibility (1999) (National Institute of Trial Advocacy)
Crystal, Nathan M., An Introduction to Professional Responsibility (1998)
Gillers, Stephen, Regulation of Lawyers: Problems of Law & Ethics (5th ed. 1998)
Gorlin, Rena A., ed., Codes of Professional Responsibility (4th ed. 1999)
(Bureau of National Affairs)
Coquillette, Daniel R., Lawyers & Fundamental Moral Responsibliity (1997)
Hazard, Geoffrey C., Jr.; Koniak, Susan P.; & Cramton, Roger C., The Law and
Ethics of Lawyering (3d ed. 1999) (Foundation)
Hutchinson, Allen C., Professional Responsibility (1998) (Erwin)
Lane, Nathan M., An Introduction to Professional Responsibility (1998) (Aspen)
Moliterno James E., Cases & Materials on the Law Governing Lawyers (1999)
Patterson, L. Ray, Lawyer's Law: Procedural, Malpractice & Disciplinary Issues
(4th ed. 1998) (Matthew Bender)
Rhode, Deborah L., Professional Responsibility: Ethics by the Pervasive Method
(2d ed. 1998) (Aspen)
Simon, William H., The Practice of Justice: A Theory of Lawyers' Ethics (1998)
(Harvard University Press)
Weeks, Edward P., Treatise on Attorneys and Counselors at Law (1997) (Rothman)
Zitrin, Richard A. & Langford, Carol M., The Moral Compass of the American
Lawyer (1999) (Ballantine)
Advertising and Solicitation
Hylton, Joseph Gordon, Professional Values and Individual Autonomy: The United
States Supreme Court and Lawyer Advertising (1998) (Carolina Academic Press)
Corporate and Entity Representation
American Bar Association, Section of Litigation, Task Force on the Independent
Lawyer, The Lawyer-Director: Implications for Independence (1998)
Attorneys' Liability Assurance Society, Inc., Lawyers Serving on Client Boards:
A Law Firm Management Guide (1998)
Knox, George W., Ethics in Criminal Justice: An Introduction (1998) (Carolina
Max, Criminal Acts of Lawyers (1997) (Tecton Pub.)
Pollock, Jocelyn M., Ethics in Crime & Justice: Dilemmas & Decisions (3d ed.
1997) (Wadsworth Pub.)
Abrahamson, Debbie, et al., Professional Conduct 1997/1998 (2d ed 1997) (Inns of
Court Law Series) (England)
Boon, Andy, The Ethics and Conduct of Lawyers in the United Kingdom (1999)
(Hart) (United Kingdom)
Burgoa, Ignacio, El Jurista y el simulador de derecho (1998) (Editorial Porrúa
Campillo Sáinz, José, Dignidad del abogado: algunas consideraciones sobre ética
profesional (8th ed. 1998) (Editorial Porrúa México) (Mexico)
Campillo Sáinz, José, Introducción a la ética profesional del abogado (1997)
(Editorial Porrúa México) (Mexico)
Dal Pont, Gino Evan, Lawyers' Professional Responsibility in Australia & New
Zealand (1996) (LBC Information Services) (Australia, New Zealand)
Gargaglione, Elvia Lucia, Código de ética de los abogados: comentado, doctrine-
jurisprudencia (1996) (Argentina)
Inns of Court School of Law, Professional Conduct (3d ed. 1998) (Blackstone
Press) (United Kingdom)
Johansen, Baber, Contingency in a Sacred Law: Legal and Ethical Norms in the
Muslim fiqh (1999) (Brill) (vol. 7 of Studies in Islamic Law)
Lôbo, Paulo Luiz Bneto, Comentários ao estatuto da advocacia (2d ed. 1996)
(Brasilia Jurídica; Conselho Federal da Ordem Advogados do Brasil) (Brasil)
MacKenzie, Gavin, Lawyers and Ethics: Professional Responsibility and Discipline
(2d ed. 1999) (Carswell) (Canada)
MacKenzie, Gavin; Newberry, Mary V.; & Lundy, Derek, Barristers & Solicitors in
Practice (1998) (Butterworths) (Canada)
Martin, Raymond, Déontolige de l'avocat (1998) (Litec) (France)
Martinez Pineda, Angel, Ética y axiologica jurídica (1998) (Editorial Porrúa
No author, Código de ética profesional (1998) (Ediciones Situm) (Puerto Rico)
No author, E statuto da advocacia e da Ordem dos Advogados do Brasil:
regulamento geral e código de ética (1997) (Editora Destaque) (Brazil)
Okusov, Anatolii Petrovich, Vvdenie v iuridicheskuiu deontologiiu (1997)
(Ministerstvo vnutrennikh del Rossii, Rostovskaia vysshaia shkola) (Russia)
Pérez Fernández del Castillo, Bernardo, Deontología jurídica: ética del abogado
(1998) (Editorial Porrúa México) (Mexico)
Ross, Stan D., Ethics in Law: Lawyers' Responsibility and Accountability in
Australia (2d ed. 1998) (Butterworths) (Australia)
Smith, Beverley G., Professional Conduct for Lawyers & Judges (1998) Maritime
Law Books) (Canada)
Varaut, Jean-Marc, Mission de réflexion ed de propositions en vue de
l'élaboration d'un code des professions judiciaires et juridiques (1998)
(Documentation française) (France)
Law and Literature
Heald, Paul J. ed., Literature & Legal Problem Solcing: Law & Literature as
Ethical Discourse (1998) (Carolina Academic Press)
Polloczek, Dieter, Literature and Legal Discourse: Equity and Ethics from Sterne
to Conrad (1999) (Cambridge University Press)
Cannon, Teresa A., Ethics and Professional Responsibility for Legal Assistants
(3d ed. 1999) (Aspen)
Orlik, Deborah K., Ethics for the Legal Assistant (4th ed. 1998) (Marlen Hill)
Brewer, Scott, ed., Moral Theory and Legal Reasoning (1998) (Garland Pub.)
Farber, Daniel A., Beyond All Reason: The Radical Assault on Truth in American
Law (1997) (Oxford University Press)
Hurd, Heidi M., Moral Combat: The Dilemma of Legal Perspectivism (1999)
(Cambridge University Press)
Louisiana Bar Foundation, In Our Own Words: Reflections on Professionalism in
the Law (1998)
Posner, Richard A., The Problematics of Moral and Legal Theory (1999) (Belknap
Wilson, James Q., Moral Judgment: Does the Abuse Excuse Threaten Our Legal
System (1998) (Basic)
Practice of Law
Elwork, Amiram, Stress Management for Lawyers: How to Increase Personal and
Professional Satisfaction in the Law (2d ed. 1991) (Vorkell Group)
Hilllman, Robert W., Hillman on Lawyer Mobility: The Law and Ethics of Partner
Withdrawal and Law Firm Breakups (2d ed. 1998-1999) (Aspen)
Keeva, Steven, Transforming Practices: Finding Joy and Satisfaction in the Legal
Life (1999) (Contemporary Books)
Tobin, Stanley E., A Journey in Search of Justice: Confronting Ethical, Moral
and Professional Dilemmas in the Practice of Law (1997) (Graduate Group)
Coffey, Thomas P., The Morristown Courthouse Atrocity (1997) (Dimension Pub.)
(Vol 3 of Studies in Judicial Perversion)
Haskell, Paul G., Why Lawyers Behave as They Do (1998) (Westview)
Hill, Anderson C., II, In Search of the Truth: A Real Life Story of What an
Attorney Should "Not" Do! (1997) (Prime Time Publications)
Justice, Loretta, Trial of the Century: Obstruction of Justice-Viewpoint of a
Trial Watcher (1997) (Brandon Pub. Co.)
Perlmutter, Mark, Why Lawyers (and the Rest of Us) Lie and Engage in Other
Repugnant Behavior (1998) (Bright Books)
Chicago Bar Association, The Young Lawyer's Professional Responsibility Guide
Video and Audio Tapes
Association of American Law Schools, The Professional Responsibilities of
Professional Schools (1999) (New Orleans meeting) (audio cassettes)
Gillers, Stephen, Amanda Kumar's Case Written by Stephen Gillers (1999) (NYU
School of Law) (videocassette)
Rotunda, Ronald D., Professional Responsibility (2d ed. 1998) (Volunteer
Services for the Visually Handicapped) (audio cassettes, 17 and 1/4) (reading of
1988 West volume)
Section Program on Ethics Consulting Provokes Audience Fireworks
Roy Simon (Hofstra)
The Professional Responsibility Section's 1999 Annual Meeting Program in New
Orleans, entitled "The Ethics of Ethics Consulting," produced a flurry of
passionate responses from the audience. The room was packed, with almost every
seat taken, and there were long lines at the audience microphone.
Please print and complete the enclosed empirical survey (found at the end
of this newsletter) on ethics consulting! Whether or not you personally
engage in ethics consulting or serve as an expert witness, please help
develop empirical data on this important topic. Thank you.
The panelists for the program were Professors Teresa Collett (South Texas),
Stephen Gillers (NYU), and Richard Zitrin (U. of San Francisco), who is also a
practicing lawyer, as well as Robert Cummins, a practicing lawyer with Bickel &
Brewer's Chicago office. The Moderator was Nancy Moore (Boston U.), who is also
the Chief Reporter for the ABA's Ethics 2000 Commission. The rather mild
description in the AALS program book read as follows:
Professional Responsibility teachers are increasingly being invited to
serve as consultants and expert witnesses in legal malpractice,
disqualification and other cases involving the conduct of lawyers. There
are a host of legal, ethical, and practical issues that we face when we
agree to serve: Are we practicing law when we give advice to former
students or to clients who retain us as potential expert witnesses? Do we
need and can we get (affordable) malpractice insurance? How do we decide
which cases to accept? How do we deal with lawyers who are pressing us to
stretch our opinions in a more favorable direction? What fee should we
charge? Do we need a retainer agreement? Can we properly use our law
school stationery, office, telephone, computer, and/or free
computer-assisted research accounts? Is it appropriate to publish a
scholarly article on a subject on which we have just given an expert
opinion? Should we be testifying at all? Why or why not? How will we know
when we are doing too much? ....
For the first half hour or so, the program focused on some interesting but
relatively mundane issues. Do ethics professors who serve as expert witnesses
need malpractice insurance? (It's a good idea, and pretty cheap.) How should
professors decide what cases to accept as an expert, or what positions to take?
(Stephen Gillers suggested two tests: (1) Could he circulate the transcript of
his testimony among his colleagues without being humiliated? and (2) Would he
give the same opinion, based on the assumed facts, if he were a swing-vote judge
when the issue came before his court?)
Then the discussion turned to retainer agreements. The panelists talked about
how to set fees, and attorney Bob Cummins said that in his retainer agreements
specified that he would fly first class so that he could get as much work done
as possible. At that point, Professor David Wilkins (Harvard) stepped up to the
microphone and the fun began. "I got here late," Professor Wilkins said, "It's
now after 4:00 p.m. and all we're discussing is how much money we can make. With
all due respect, that's not a worthy topic of discussion for this Section." He
then suggested that perhaps ethics professors should not engage in expert work
at all--or if they do, they should serve pro bono.
After that jarring comment, the discussion quickly turned to the most
fundamental question: Should legal ethics professors serve as ethics consultants
or as expert witnesses at all?
Virtually all of the opposition came from the audience. The strongest support
for serving as an expert witness came from the panel, with occasional support
from the audience. Obviously, there was a gap here, a sharp difference of
opinion that was not only intellectual but also emotional. Many audience members
opposed paid expert work not only for themselves personally but also for all
other legal ethics professors. Here is a sampling of the audience comments,
based purely on my memory of the program (with apologies to anyone I misquote):
Susan Koniak (Boston College) said she had earned a lot of money in the asbestos
litigation but would not take money for ethics consulting any longer because it
diminishes our voice as scholars. How can we be credible in our writing after we
have taken a position as a paid expert? Judith McMorrow (Boston College) said
she once accepted an $1,800 check from a plaintiff in an egregious case of legal
malpractice case--"The lawyer had really screwed over the plaintiff"--but
decided to do the rest of the work for free because she didn't think she should
profit from someone else's misfortune due to the shortcomings of a member of our
profession. She said that law professors have a collective responsibility to
prevent and redress legal malpractice, and we should not profit from our own
failure to produce competent lawyers.
Andy Kaufman (Harvard) said he decided early in his career that he would not
serve as a paid expert because he did not think he could do that and remain
objective. Ellen Suni (U. Missouri - Kansas City) said we can further justice
equally well by filing amicus briefs.
The most interesting story came from Alan Weisbard (Wisconsin). He said that he
used to work on a federal bioethics task force and recalled when a colleague
left the task force to join a private company. "We gave him a t-shirt," he said,
"and the sentiments should apply to legal ethics as well as bioethics. On the
front it had a big dollar sign that said, 'ETHICA$H' and on the back it said,
'Ethics is easy when it doesn't matter which way you come out.'"
The tape of this program, if you haven't ordered it yet, will be well worth
What the program did not reveal is how many ethics professors actually engage in
ethics consulting or expert witness work, whether they work pro bono, how much
time they spend, etc. To help develop data on those points, a short survey is
enclosed with this newletter. Please take time to fill out this survey. I am
writing an article on the ethics of ethics consulting, and your few minutes
filling out the survey-- whether or not you personally engage in consulting or
expert witness work--will help me enormously and will produce some data of
interest to the entire Section on Professional Responsibility and beyond.
ABA Section of Litigation Project
The ABA Section of Litigation has allocated funds to develop and publish written
materials for use in training litigators about different aspects of ethics and
professionalism. Emphasis will be placed on problems encountered by litigators
in small firm and solo practice settings.
The ABA Section seeks fifteen (15) law professors to work on this project. Each
professor would work in partnership with an experienced practitioner to develop
materials on a particular issue or set of issues. Each set of materials would be
designed for an experienced practitioner to use with a group of junior lawyers
in a one-hour, interactive training program. It would include two parts: (1)
"problems and readings" to be provided to the junior lawyers (e.g., hypothetical
questions, scripts, or role-playing exercises, together with background readings
excerpting or summarizing relevant ethics rules and opinions) and (2) an
explanation of how to lead a discussion on the subject (i.e., a "teacher's
manual") for the senior lawyer-trainer. The materials could be used in any of
various contexts, including in-house law-firm training programs, bar association
and continuing legal education programs, and informal gatherings. Each professor
would receive a $2,000 honorarium for his or her work. For more information,
contact Professor Bruce Green at 212-636-6851 or firstname.lastname@example.org.
ABA Ethics 2000 Drafts Available
Ethics 2000 just released drafts of Rules 1.4, 1.6, 1.7, 1.8, 1.9 and 1.10 for
public comment, along with memos explaining the changes the Commission is
proposing. All this material is available on our website:
www.abanet.org/cpr/ethics2k.html, or people can contact Sue Campbell for hard
copies: 312-988-5328 or email@example.com. Comments are due to the
Commission by Sept. 15. We'll be holding hearings at the National Conference on
Professional Responsibility in June and at the ABA Annual Meeting in August.
Annotated Model Rules Available
The Annotated Model Rules of Professional Conduct has been revised and updated.
The ABA hopes you will consider adopting this convenient, one-volume desktop
reference guide for your upcoming courses, as other law professors teaching
professional responsibility have done. The 600-page text contains each Rule and
its Comment, the Model Code comparison, and a detailed discussion of the Rule's
meaning, application and interpretation with exhaustive citations. The fourth
edition has been completely revised with new annotations for each rule and a
Discounts to law schools
The Annotated Model Rules of Professional Conduct, 4th Edition will be available
for $89.95. We offer a 40% discount to those using the books in a course. If the
books are ordered through the law school bookstore we offer an additional 20%
discount, bringing the cost to $43.18 per book.
Examination copies available
The Annotated Model Rules of Professional Conduct, 4th Edition will be available
in June. If you would like to receive a copy of the new edition, please send
your request including your name, the name of your course, your school, and
school address to: American Bar Association, c/o Maribel Lopez, PPM, 750 N. Lake
Shore Drive, Chicago, IL 60611
Empirical Survey on Ethics Consulting by Ethics Professors
The Section on Professional Responsibility's program at the 1999 AALS Annual
Meeting in New Orleans produced long lines at the audience microphones. But the
debate is being conducted without the benefit of any empirical data, and there
are many unanswered questions. For example, how many ethics professors engage in
some type of ethics consulting, either as expert witnesses or as advisors to
lawyers? How much time do they spend on this work? How much of the work is paid,
and how much is pro bono? How much of the consulting work is on the side of the
lawyers, and how much is on the side of parties opposing lawyers? To help fill
the empirical gap, please take a few minutes to fill out and return the survey
included later in this issue.
25th ABA National Conference
The 25th National Conference on Professional Responsibility, which is an annual
gathering of lawyers, law professors and judges who are interested in the broad
spectrum of professional responsibility law: professional discipline and
regulation, legal ethics, professionalism and competence, professional
liability, client protection, bar leadership, representation of other lawyers,
lawyer assistance programs, and other related areas will be held June 3-5 in La
Jolla, California. The National Conference on Professional Responsibility is
presented as a means of enhancing the quality and exchange of information in
this area of law. Attendees have the opportunity to formally and informally
collect information and discuss current issues and problems in the area of
professional responsibility with leading experts, scholars and practitioners
from across the country. Conference faculty include recognized experts on
professional responsibility who provide written materials, present plenary
discussions and direct panel workshops open to audience participation. Please
visit the Conference home page at www.abanet.org/cpr/prconf.html or contact Brad
Hoffman (312) 988-5305. firstname.lastname@example.org for more information.
ABA National Forum on Client Protection
Since 1984, the Standing Committee on Client Protection has sponsored on an
annual basis the National Forum on Client Protection. The Committee will host
the 15th National Forum on Client Protection on June 4-5, 1999 in La Jolla,
California in conjunction with the 25th National Conference on Professional
Responsibility. The Forum is the only national informational and educational
program for professionals working in the area of client protection. It is an
open arena for an informal exchange of ideas and provides a platform for all
colleagues in the client protection field to foster ideas and share their
experiences. Some of the programs include: a fee arbitration workshop, FAQ's
about fee arbitration, mediation versus arbitration of client-lawyer disputes,
should a client protection fund be a fund of last resort, the trustee's role in
investigating claims made against the client protection fund, a difficult claims
workshop and current developments in the client protection arena. Raymond C.
Marshall, the current President of the State Bar of California, will present the
opening remarks at the Forum.
The National Forum on Client Protection qualifies for CLE credit in most states
that have MCLE requirements. Please call Brad Hoffman at 312/988-5305 for more
information. For more details, contact Brad Hoffman at (312) 988-5305.
South Texas Law Review Ninth Annual Ethics Symposium
On October 14, 1999 South Texas Law Review will host its ninth annual ethics
symposium. Judicial ethics has been selected as the topic, with presentations by
Professors Steven Lubet and Judy Maute as well as other distinguished academic
and practicing lawyers. For more information contact Betty Aronowitz, South
Texas Law Review, 1303 San Jacinto, Houston, Texas (713) 646-1749, (713)
646-1749, fax (713) 646-2948, email@example.com.
Empirical Survey on Ethics Consulting by Roy Simon (Hofstra)
The Professional Responsibility Section's program at the 1999 AALS Annual
Meeting was entitled "The Ethics of Ethics Consulting." Unfortunately, there is
no empirical research on how many ethics professors serve as ethics consultants,
how much time they spend consulting, or what kinds of consulting they do. To
help fill this gap, please take a few minutes to print and complete the survey
below. Please fill out the survey even if you do not serve as a paid ethics
consultant or expert witness. The identity of individual respondents will be
kept strictly confidential unless you consent to the publication of your
individual comments and/or responses. When you finish, send your responses to:
Professor Roy Simon - by fax to (516) 463-4962 or by mail to Hofstra University
School of Law, California Avenue, Hempstead, NY 11550
Empirical Survey on Ethics Consulting
Name (optional) ______________________________ Law School
May I publish your individual comments and responses? Circle one: Yes No
What is your job?
Adjunct professor or part-time professor
Full-time practicing lawyer
Do you currently teach Professional Responsibility (or have you sometimes taught
Yes, I am teaching it this semester
Yes, I have taught it in the past
No, I have never taught professional responsibility
Do you engage ethics consulting as an expert witness or advisor to lawyers?
(Check all that apply)
Yes, I advise lawyers or law firms regarding professional responsibility issues
Yes, I serve as an expert witness
Yes, I work on amicus briefs
No, I don't do any ethics consulting
If you have never served as a paid or unpaid expert witness or consultant on
professional responsibility issues, you are finished. Thank you. If you have
served as an expert witness or consultant, please continue.
How much time do you spend on consulting work?
Less than 5 hours a week
Between 5 and 10 hours a week
More than 10 hours a week
How much of your expert work is compensated, and how much is pro bono?
All of my expert work is compensated
Most of my expert work is compensated
Compensated and pro bono work are about equal
Most of my expert work is pro bono
All of my expert work is pro bono
How much of your work as an expert witness is on the side of the lawyers, and
how much is on the side of those opposing lawyers?
All of my expert work is on the side of lawyers
Most of my expert work is on the side of lawyers
My expert work is about evenly split between lawyers and parties' opposing
Most of my expert work is for parties' opposing lawyers
All of my expert work is for parties' opposing lawyers
Does your law school or university have a policy on how much paid consulting you
No, there's no policy
Yes, we may spend up to 10% of our time on paid consulting or private practice
Yes, we may spend up to 15% of our time on paid consulting or private practice
Yes, we may spend up to 20% of our time on paid consulting or private practice
Yes, but the policy is something else (please describe briefly below)
How do you split your time between work as an expert witness and work as an
advisor on professional responsibility issues in non-litigated matters?
All of my expert work is in litigated matters
Most of my expert work is in litigated matters
My expert work is about evenly split between litigated matters and mere advice
Most of my expert work is merely advice
All of my expert work is merely advice - I never testify as an expert
Any comments on whether law professors who teach professional responsibility
ought to serve as expert witnesses in litigation? (Use a separate sheet if
Please fax your response to (516) 463-4962 or mail it to Professor Roy Simon,
Hofstra University School of Law, California Avenue, Hempstead, NY 11550. Thank