• The Problematical Role of the Legal Ethics Expert Witness

      Selinger, Carl M. (00)
      Legal ethics scholars are divided in their willingness to be employed as expert witnesses (or to submit affidavits, be deposed, or prepare public statements that will be released as the opinion of an impartial expert). The admission of testimony on the law governing lawyers, as distinguished from factual testimony on the customary practices of lawyers, would seem to be inconsistent with the common law's traditional exclusion of expert testimony on the law -- an exclusion based on the ability of the court to look up the law itself and on the ability of litigants to retain experts on the law as consultant-advocates rather than as witnesses. This article evaluates the three principal justifications that have been offered for admitting expert legal ethics testimony: the inaccessibility of legal ethics law, the advantage of objectivity, and the advantage of cross-examination. It then goes on to discuss two ethical issues that have arisen for ethics expert witnesses themselves: serving in the same case as both witness and consultant, and giving an opinion without independently examining the facts.
    • The Endemic Reality of Media Ethics and Self-Restraint

      Morant, Blake D. (00)
      In contemporary society, media ideally facilitates democracy through its continual scrutiny of governmental operations. The essentiality of this function leads to the industry's designation as the fourth estate. The true effectiveness of the fourth estate remains largely dependent on the adherence to ethical norms that ensure responsible, journalistic behavior. Most media sources have voluntarily adopted ethical standards. Despite such responsible action on the industry's part, an ominous issue remains: Does the media truly embrace ethical codes of conduct? The invitation to participate in a symposium that is devoted to media ethics provides the opportunity to explore the reality of ethical behavior by sources that report the news. Contrary to stereotypical perceptions, this article theorizes that a motivational triad consisting of credibility, audience, and profit prompts the news media's compliance with journalistic codes of ethics. Credibility, which is a foundational element of the motivational triad and leads to audience and profit, remains a dominant force, despite an ever-increasing focus on entertainment. This article also proffers several practical measures that the news media should adopt to ensure the effectiveness of ethical codes.
    • Book Review

      Martyn, Susan R. (00)
      Wolfram's Modern Legal Ethics offers a systematic moral and legal analysis of nearly every aspect of lawyer conduct.
    • The Myth of Civic Republicanism

      Spaulding, Norman W. (00)
      Ethicists, historians and sociologists have generally accepted the premise that the legal profession did not offer strong, public defenses of the adversary ethic (ethically neutral service of clients) until after 1870 when professional elites sought to rationalize their role in the rise of corporate capitalism. Prior to 1870, it has been argued, the legal profession was dominated by a civic republican ideology in which lawyers conceived their role as a form of public service dedicated to vindicating the interests of justice and morality even if that meant refusing to seek a client's lawful ends. This paper challenges both claims. Surveying antebellum law periodicals, the article reveals a robust debate on the definition and justifiability of the lawyer's role. In particular, the article examines defenses of the adversary ethic that were both more vigorous and far less apologetic than defenses offered today. Moreover, the article shows that the defenses came from legal elites, not simply Jacksonian levelers, and the defenses were couched in the discourse of civic republicanism - suggesting that morally activist lawyering was not the only conception of the role thought to be consistent with civic republican principles.
    • Migrating Lawyers and the Ethics of Conflict Checking

      Tremblay, Paul R. (00)
      Lawyers often leave a practice setting and move to a new practice as their career paths advance or change. The incidence of lawyer migration has increased dramatically in the past decade, as law firms recruit more lateral hires and offer fewer partnership opportunities to their associates. As a lawyer prepares to change employment settings, her prospective new law firm asks her about the clients she has represented in the past. The new law firm must insist on this information, for without it the firm could not screen for possible conflicts of interest. Were the firm to hire a lawyer without such conflict screening, the new lawyer's taint could disqualify the firm from important and lucrative work, and cause great harm to its clients. At the same time, the migrating lawyer owes her clients a strong confidentiality obligation under the Model Rules of Professional Conduct and the law of lawyering. When the prospective new firm asks for information about her clients, the lawyer faces a delicate quandary. Her career interests and her respect for the new firm's conflict policies demand that she provide the requested information; her confidentiality duties seem to require her not to reveal her client's information without their permission. Seeking such permission is often impossible or impractical. This Article investigates this difficult and widespread ethical issue. It begins by identifying five types of information which a new law firm is likely to want from a prospective hire, including information about the prior firm's work but also financial data regarding the lawyer's client billings. It then looks carefully at the Model Rules, the Restatement (Third) of the Law Governing Lawyers, and other authority for insights about which disclosures are lawful and which are not. It concludes that the available authority in fact permits surprisingly little information sharing, but argues that the authority ought to permit carefully defined disclosures which will not present hardships or embarrassment to the migrating lawyer's clients. The Article offers distinctions in information-sharing which can protect the moving lawyer's client confidences while allowing law firms to protect their clients' interests, and offers protocols for performing conflict checks when a lawyer cannot reveal her client's identities without causing them some harm. Finally, the Article offers several discrete changes to the Model Rules, which if adopted would provide clarity to lawyers and law firms engaged in the lateral hiring process.
    • An Ethics Critique of Interference in Law School Clinics

      Kuehn, Robert R.; Joy, Peter A. (00)
      Law school clinics play an important role in training future lawyers and in providing legal assistance to traditionally under-represented individuals and groups. In addition to facing the legal issues present in any law practice, law clinic students and faculty are often confronted with ethical issues that lawyers representing poor and unpopular clients sometimes face - outside interference in case and client selection. This article explores the ethical considerations raised by interference in law school clinic case and client selection and limitations on the means of representation lawyers may employ in representing their clients. The article's analysis provides a useful framework for responding to interference with not just law school clinics, but also with legal services lawyers, public defenders, and private practitioners representing poor and unpopular clients and causes.
    • Managing the Risks of Legal Compliance

      Hasnas, John (00)
      This article contains an overview of the ethical problems and counterproductive aspects of the current federal campaign against white collar crime.
    • Ethics for the Ex-Juror

      King, Nancy J. (Paradigm Publishers, 00)
      When jurors complete their service, they often encounter situations in which they must decide whether to reveal or discuss what went on in the jury room during their jury service. In the United States a prohibition of such speech by former jurors would generally run afoul of the First Amendment and be unenforceable. Nevertheless, there are ethical principles that former jurors should consider before speaking about their deliberations. This essay addresses those ethical considerations and canvasses situations in which former jurors might have to choose whether to talk, to whom to speak, and what to say. It concludes with a sample jury instruction on the topic for judges to give to jurors at the end of their service.
    • Sharing Accounting's Burden

      Cunningham, Lawrence A. (00)
      A familiar pass-the-buck pas de deus in deal meetings occurs when the accountant says, after an impasse, "that's a legal problem" while the lawyer says "that's an accounting problem." The truth is, both are right; the trouble is, as Enron shows, prevailing professional cultures create a crack between law and accounting that resolute fraud artists exploit, not cultures that emphasize the intersection of law and accounting that should foil would-be fraudsters. As policymakers rush to respond to Enron, this perspective on law and accounting should be appreciated, as should Enron's place in soecity's parade of corporate debacles. At Enron's core are accounting chicanery related to off-balance sheet financing and related party transactions, but in its penumbra are also colossal examples of governance, audit, and regulatory failure. Even in its accounting aspects, Enron is both an isolated example of fraud and epitome of systemic failure in the financial reporting and disclosure regime. It is another accounting scandal added to the sum of accounting scandals that evidences a broader dysfunction. While not in the league of the LBO, BCCI, or S&L debacles, Enron as an accounting scandal is the straw that broke the accounting camel's back. Among possible regulatory responses are wresting the standard setting function from the profession of accounting and rendering accounting rules and standards matters of law, as is done in many countries. While such a bold move would surely constitute a huge power shift from accountants to lawyers, the effect on the competent business lawyer's practice would be more modest. Competent business lawyers already treat accounting principles as an important tool in their professional toolbox, even if by virtue of the manner and source of their present promulgation they are better understood as facts rather than law. Despite the increasing role accounting plays in business law practice since the mid-1970s, accounting teaching in law schools has declined. First taught in 1950, professors at top schools rapidly published impressive books and the number teaching the subject gradually increased through 1975, its peak, and has decreased as steadily since. In 1975, 150 full-time law professors taught accounting while today only 96 do, a drop of 36% during a period when the number of law schools increased by 19% and the number of full-time law professors increased by 35%. So beginning when accounting rose in practical importance to lawyers, the academy began to demote its significance in the law school curriculum. Reasons for the decline include the rising intellectual influence of modern finance theory. This theory's efficient market hypothesis discounts the relevance of accounting data in a world where financial analysts pierce the form of accounting reports to discover fundamental values wholly apart from accounting choices. In law schools, modern finance theory became the centerpiece of a rival course, corporate finance. The string of accounting debacles culminating in Enron show the folly and fantasy of ECMH and modern finance theory. When coupled with the practice of business lawyers, questions beyond pedagogy arise, particularly the professional ethics of business lawyers. It suggests that the ethical duty of competence should require knowing some accounting. The professional literature concerning legal ethics offers a more equivocal answer. Yet all lawyers know that just because something is legal doesn't mean it is right. In the area of legal ethics, just because a duty can be technically discharged in a painless way, doesn't mean client interests are served.
    • Bargaining Ethics, Contract and Collaboration

      Peppet, Scott R. (00)
      This Article combines contractarian economics and traditional ethical theory to argue for a revision of the legal profession's codes of ethics. That revision would replace the existing uniform conception of the lawyer's role with a more heterogeneous profession in which lawyers and clients could contractually choose the ethical obligations under which they wanted to operate. This "contract model" of legal ethics, in which lawyers could opt in and out of various ethical constraints, would lead to greater efficiencies and greater satisfaction for attorneys and clients. In particular, the paper explores the bargainer's problem of sorting honest collaborators from dishonest adversaries, and concludes that the legal ethics codes should be revised to facilitate self-identification by collaborative attorneys.
    • Managerialism, Legal Ethics, and Sarbanes-Oxley Section 307

      Bainbridge, Stephen M.; Johnson, Christina J. (00)
      Prepared for a conference on the Sarbanes-Oxley Act (a.k.a. the "Public Company Accounting Reform and Investor Protection Act" of 2002), this Article focuses on the professional responsibility rules promulgated by the Securities and Exchange Commission under Section 307 of the Act. According to the theoretical model of corporate governance espoused by all business corporation statutes, a corporation is to be run by its board of directors for the benefit of its shareholders. In practice, however, corporations frequently are run by their top managers for the benefit of those managers. A number of recent trends have empowered boards of directors vis-a-vis management. As this Article's review of the statutory text and its legislative history demonstrates, Congress intended the Sarbanes-Oxley Act to further that trend. We further demonstrate that Section 307 should be understood as part of the Act's overall anti-managerialist intent. Congress sought to enlist legal counsel in strengthening the board. Specifically, Congress directed the SEC to create an up the ladder reporting requirement pursuant to which a firm's legal counsel would report evidence of misconduct to the board of directors, thereby redressing one of the information asymmetries between boards and managers. This Article argues that, as a normative matter, Sarbanes-Oxley Section 307 was well-intentioned. As a practical matter, however, Section 307 seems unlikely to effect significant changes in corporate governance. In our view, the nature of legal practice, the largely unchanged relationship between lawyers and managers, and the problematic approach taken by the SEC to implementing Section 307 suggest that the new legal regime is unlikely to result in significantly better information flows within the corporate hierarchy.
    • Legal Ethics, Jurisprudence, and the Cultural Study of the Lawyer

      Anand, Rakesh K. (00)
      In America, law is a cultural practice. Americans are dedicated to living as a community under the rule of law. This commitment to a legal way of life cannot be reduced to an equally strong devotion to a moral form of being. That is, the two dimensions of experience are incommensurable (which does not mean that they are wholly insulated or separate from one another). One consequence of this normative condition is that the demands arising from a commitment to law are not always reconcilable with those stemming from moral beliefs. At the same time, neither obligation has priority over the other. For the individual in his or her role as a lawyer, this indicates that he or she may be required to act in a manner that is not defensible on any moral ground, but is still capable of justification. As an analysis of the character of the lawyer's life, these facts reveal a basic truth: the life of the lawyer is an inherently conflicted, and an absolutely meaningful, one. This argument presents a direct challenge to contemporary legal ethics discourse, in its most essential aspects. In this Article, this argument takes the form of a defense of a new orientation toward our thinking about the practice of law, which is the cultural study of the lawyer (cultural study understood as a type of philosophical anthropology). An in-depth introduction to this line of reasoning is presented, an explanation that appeals to a variety of fields of knowledge, including jurisprudence, epistemology, political theory, and moral philosophy. The goal is to convince the reader of the propriety, and the power, of this form of inquiry into a lawyer's professional responsibility. The benefit is an understanding of lawyer ethics that is both realistic and hopeful.
    • Institutional and Individual Justification in Legal Ethics

      Wendel, W. Bradley (00)
      Monroe Freedman is well known as a proponent of the "standard conception" of legal ethics - that is, that a lawyer cannot be criticized in moral terms for actions taken in a representative capacity. Surprisingly, however, Freedman has argued that client selection is a decision for which a lawyer may be required to provide a justification in ordinary moral terms. This apparent inconsistency reveals a conceptual distinction in normative ethical theory, which is often blurred, between justifying a practice (in this case, the legal system or some specialized practice such as criminal defense) and justifying an action falling within the practice (here, either actions of a lawyer while representing a client or the decision to accept or decline the representation of a client). A practice as a whole must be justified on the basis of moral concepts, such as consequences, rights, and other values. Once a practice exists, however, particular "moves" within the practice are justified on the basis of the constitutive rules which make up the practice, not on the basis of underlying moral concepts. This is the practice conception of rules, defended by John Rawls in an influential 1955 paper. This paper makes two arguments - one metatheoretical and one a substantive argument within legal ethics. The methodological or metatheoretical argument is that professional ethics should proceed at one level of abstraction or another, but not equivocate back and forth between them. One can give systemic reasons why a lawyer ought to act on rules of a practice, and not on the basis of an all-things-considered moral evaluation of what she ought to do in the situation. Once committed to this style of reasoning, however, consistency demands that the frame of reference for the argument not suddenly be shifted to ordinary moral considerations. On the other hand, one might believe that clarity or some other consideration demands addressing questions of professional ethics exclusively in terms of first-order moral values. If one adopts that stance, however, it is impermissible to appeal to blanket permissions on the basis of the rules of the game. Every action must be justified on an all-things-considered basis. Subtle shifting between the two levels of justification creates unnecessary confusion, and may account for the occasionally frustrating nature of debates in legal ethics, where the participants seem to be talking past each other. Moreover, it is part of the general pattern of ethical justification in the public domain - including political and legal ethics - that the primary focus of evaluation is the institutional structure through which action occurs. This evaluative perspective, which is one rough distinction between political and moral philosophy, excludes from deliberation the full range of reasons that would ordinarily be relevant in practical reasoning. The client-selection debate, like any controversy within legal ethics, should therefore be resolved not as a matter of straightforwardly applying ordinary moral values, but in the way suggested by Rawls, with due attention given to the institutional setting of the action. The substantive argument within legal ethics is that the concept of agency does not require that a practice build in significant opportunities for the exercise of judgment on the basis of ordinary moral values. Reflective self-consciousness, which is constitutive of moral agency, is consistent with opting into a practice at a relatively high level of generality, and considering onself bound by the rules of the game. At the very least, whatever one may say in terms of moral agency, in support of an argument that a lawyer has moral discretion in client selection, can be said in support of an argument that a lawyer ought not to follow the standard conception while acting in a representative capacity. Client selection and representation stand or fall together, from the point of view of their effect on agency. This paper was prepared for a conference at Hofstra Law School in honor of the work of Monroe Freedman, and will appear in the Hofstra Law Review.
    • When to Push the Envelope

      Margulies, Peter (00)
      National security lawyers regularly encounter situations where pushing the envelope of international or domestic law seems expedient, desirable, or even necessary. As the present situation at Guantanamo demonstrates, in cases involving the authorization of regimes of detention or interrogation, pushing the envelope can have deeply problematic results. Discounting or disregarding international and domestic norms can erode the integrity of the legal system, lawyers' ethics, and the credibility of the United States around the world. In some cases, however, pushing the envelope may be the appropriate course. The lawyer's guideposts in this uncertain realm where legal doctrine and statecraft meet should be the importance of dialogue, institutional consequences, and harmonization with evolving norms. The paper argues that decisions such as the Emancipation Proclamation, Lend-Lease, and the response to the Cuban Missile Crisis meet these criteria.
    • When the Lawyer Knows the Client is Guilty

      Asimow, Michael; Weisberg, Richard (00)
      This article concerns a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty (usually because the client confessed to the lawyer), but the client insists on an all-out defense? Legal ethicists have struggled with this problem since the Courvoisier case in 1840, but it remains unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical decisionmaking. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide interesting perspectives on the strong vs. weak adversarialism dilemma. According to numerous films, television shows and novels, the right answer to the lawyer's dilemma is no adversarialism at all. The good lawyer should betray evil clients to insure that the truth is discovered. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth. Literature casts doubt on whether a lawyer can know with certainty whether a client is telling the truth. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings.
    • La Opción por los Pobres [Option for the poor]

      Sobrino, Jon (Servicios koinonia, 0)
      "La opción por los pobres ha surgido en América Latina, continente mayoritariamente pobre y cristiano. Puebla la remite a Medellín, "que hizo una clara y profética opción preferencial y solidaria por los pobres", (n. 1134) y consagra la expresión "opción preferencial por los pobres" en el contexto de la misión evangelizadora de la Iglesia. Con esa opción se quiere indicar tanto el destinatario como el contenido de la evangelización: La opción preferencial por los pobres tiene como objetivo el anuncio de Cristo salvador que los iluminará sobre su dignidad, los ayudará en sus esfuerzos de liberación de todas las carencias y los llevará a la comunión con el Padre y los hermanos, mediante la vivencia de la pobreza evangélica (n. 1153)."
    • La fiesta de Pascua y Ázimos [Celebration of the Passover and the Azymes]

      Peláez, Jesús (Servicios koinonia, 0)
      "El titulo del presente artículo puede resultar a simple vista extraño al lector. Hay una serie de interrogantes que afloran a la superficie espontáneamente: ¿Tienen algo que aportar las fiestas del Antiguo Testamento a nuestras celebraciones litúrgicas? ¿No ha cambiado fundamentalmente el concepto de celebración del Antiguo al Nuevo Testamento? ¿No están superadas ya todas las fiestas del Antiguo Testamento desde una óptica cristiana?... Sin embargo, hay un dato incontestable: fiestas como la Pascua o Pentecostés y otras son la terminal indudable de un dinamismo que, nacido con frecuencia en culturas no bíblicas, pasa a formar parte del talante festivo del pueblo de Dios antes o al llegar a la Tierra Prometida, llegando a su plenitud en Jesús y la comunidad cristiana primitiva. Estas fiestas están tan enraizadas en el Antiguo Testamento que, sin éste como clave hermenéutica y punto de partida, resulta imposible descifrar su profundo significado liberador. Por otra parte, el proceso evolutivo que han seguido las fiestas del Antiguo Testamento desde su origen hasta Jesús tiene muchos puntos de contacto con la evolución de nuestras fiestas cristianas (auténticas celebraciones de la vida, que han sido bautizadas, "liturgizadas", y se han convertido en celebraciones de sí mismas, lejos de la vida en que se originaron)[1]."
    • Revisión de «Las tribus de Yavé [Revisiting The Tribes of Yahweh]

      K. Gottwald, Norman (Servicios Koinonia, 0)
      "1999 fue el año del 20º aniversario de la publicación de Las tribus de Yavé[3]. La ocasión fue recordada en la reunión anual de la Sociedad de Literatura Bíblica (EEUU), en un panel de investigadores y estudiosos que releían Las tribus y su significación en los estudios bíblicos. El organizador del panel se refirió a Las tribus como un «clásico», diciendo que ha pasado a formar parte de «esa colección de textos fuera de serie que no han sido desplazados por otros ni la crítica los ha echado a un lado»[4]. Dijo que «algunos clásicos asumen roles nuevos en situaciones diferentes, al cuestionar y responder a nuevos conjuntos de preguntas... Así, un «clásico» nunca sigue siendo el mismo que cuando apareció, pues es recepcionado de diferentes maneras según las situaciones cambiantes»[5]. La reivindicación aparentemente extravagante de que Las tribus se volvió un clásico está basada –yo creo- en los desafíos de largo alcance que hizo a los estudios bíblicos tradicionales, desafíos que hoy siguen siendo tan pertinentes como hace treinta años. Estos desafíos no fueron sólo teóricos, sino que forman parte de una intensa reconceptualización del antiguo Israel que «sacudió» las opiniones dominantes sobre su formación y su identidad."
    • Pluralismo cultural y religioso: [Religous and Cultural Pluralism]

      Barros, Marcelo (Servicios Koinonia, 0)
      "La teología del pluralismo religioso es lo que existe de más nuevo en el ámbito de la teología cristiana. Puede ser una de las bases para la elaboración de una posible futura “Teología Universal”. No es una especie de “esperanto” religioso, un mínimo común denominador que no respeta diversidades. En este texto, a partir de la realidad latinoamericana y de lo que los hermanos y hermanas han dicho en los artículos anteriores, verifico si podemos considerar a la teología del pluralismo religioso como un paradigma nuevo y adicional a la teología de la liberación, y hago algunas sugerencias para una continuidad del caminar teológico y pastoral de nuestras comunidades y movimientos."
    • A los 40 años de su emisión por el Concilio, revisamos... [At 40 years of its publication by the Council, we review...]

      Muñoz, Ronaldo (Servicios koinonia, 0)
      "El Concilio Vaticano II no ha llegado a Latinoamérica como un meteoro, que hubiera caído del cielo sobre los países centrales del occidente nordatlántico, rebotando de allí hasta nosotros. Si bien ese Concilio se gestó principalmente en Europa occidental, la recepción del Concilio y la renovación postconciliar en las iglesias católicas de América Latina tienen también raíces autóctonas, y prolongan una historia multisecular de interacción entre lo transplantado y lo nativo. Una historia en la que la periferia latinoamericana de la Iglesia católica va tomando lentamente -y con aceleración desde la segunda guerra mundial- niveles más significativos de fidelidad creativa y vida propia [1] . Si eso vale para los temas mayores y los documentos principales del Vaticano II, vale de modo especialmente claro en lo que toca a la vivencia y actuación de la Iglesia de Jesucristo. Es decir, en el asunto tratado sistemáticamente por la constitución conciliar “Lumen Gentium”; y más concretamente, en los dos temas mayores de ese documento, al mismo tiempo los más nuevos en la eclesiología católica postridentina y los de más profundas raíces bíblicas: el Pueblo de Dios (con la participación activa y corres- ponsable de todos los bautizados) y la Comunión fraterna (con afecto, prácticas y estructuras fraternas en todos los niveles)."