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 Scholarship

Recent Books in Professional Responsibility

Conference Reports

Announcements

Upcoming Conferences

Announcements

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,

e-mail bgreen@mail.lawnet.fordham.edu

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

tcollett@stcl.edu

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

lawyer operates."

"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 (bgreen@mail.lawnet.fordham.edu) 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).

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

joining.)

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

legal engagement.

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

3(C)(5)].

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

meeting.

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

cover.

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

meeting.

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

Professional Conduct.

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

affirmed.

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.

17, 1998).

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

plaintiff's co-counsel.

Ex parte Terminix International Co., No. 1971546, 1998 WL 890286 (Ala. Dec. 23,

1998).

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.

Fees

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.

1999).

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

litigation.

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

dishonest conduct.

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.

RECENT SCHOLARSHIP

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.

27 (1998).

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.

265 (1998).

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.

1707 (1998).

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

(1998).

Sisk, Iowa's Legal Ethics Rules-It's Time to Join the Crowd, 47 Drake L. Rev.

279 (1999).

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

(1997).

Wolfram, The Boiling Pot of Lawyer Conflicts in Bankruptcy, 18 Miss. C. L. Rev.

383 (1998).

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

(1998).

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

(1997).

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

(1998).

Comment, A Proposed Conflict of Interest Rule for Attorney-Mediators, 73 Wash.

L. Rev.

699 (1998).

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

(1999).

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

(1998).

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.

1 (1998).

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.

General

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:

Recommendations (1998)

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)

(Aspen)

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)

(Anderson)

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)

(Anderson)

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)

Criminal Law

Knox, George W., Ethics in Criminal Justice: An Introduction (1998) (Carolina

Academic Press)

Max, Criminal Acts of Lawyers (1997) (Tecton Pub.)

Pollock, Jocelyn M., Ethics in Crime & Justice: Dilemmas & Decisions (3d ed.

1997) (Wadsworth Pub.)

Foreign

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

México) (Mexico)

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

México) (Mexico)

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)

Paralegals

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)

Philosophy

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

Press)

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)

Public Audience

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)

State-Specific

Chicago Bar Association, The Young Lawyer's Professional Responsibility Guide

(1998)

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)

CONFERENCE REPORTS

"ETHICA$H"?

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

hearing.

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.

ANNOUNCEMENTS

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 bgreen@mail.lawnet.fordham.edu.

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 suecampbell@staff.abanet.org. 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

revised index.

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.

UPCOMING CONFERENCES

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. bradhoffman@staff.abanet.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.

bradhoffman@staff.abanet.org

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, aronowit@stcl.edu.

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?

Full-time professor

Adjunct professor or part-time professor

Full-time practicing lawyer

Do you currently teach Professional Responsibility (or have you sometimes taught

it)?

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

lawyers

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

may do?

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

necessary.)

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

you.