Georgetown Journal of Legal Ethics

Publisher:: Georgetown University Law Center
Publication date:: 2022-07-01

ISBN:: 1041-5548

Issue Number

No. 36-3, July 2023

Latest documents

Race Ethics: Colorblind Formalism and Color-Coded Pragmatism in Lawyer Regulation
The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more generally. Spoken in archetypal tropes, seen in stereotypical images, and heard in stock stories, race infects the central lawyering roles of advocate and advisor, echoing inside and outside courthouses and resounding in the rules of professional responsibility and the norms of professionalism. By turns cast in colorblind, color-coded, and color-conscious oral, written, and symbolic forms, the meaning of racial identity, racialized narrative, and racially demarcated community is both constructed and contested in the lawyering process and in the regulation of lawyer conduct. In prior writings across the fields of civil rights, criminal justice, and poverty law, I mapped the intersection of race, representation, and ethics against the contours of the lawyering process, professional regulation, and legal education, especially within law school clinics and indigent civil and criminal justice systems. The purpose of this article is to revisit that body of writing and to reevaluate the continuing uses and the persisting stigma harms of race in contemporary civil rights and criminal justice advocacy, particularly in cases of racial violence. The goal of revisiting and enlarging this previous work is to grasp more fully how civil rights lawyers, prosecutors, and criminal defense attorneys use race to advantage or disadvantage Black litigants, victims, jurors, witnesses, and even other lawyers—and, moreover, how they use ethics rules and standards designed to regulate racial bias and prejudice to justify their conduct
Human Rights and Lawyer's Oaths
Each lawyer in the United States must take an oath to be licensed to practice law. The first time a lawyer takes this oath is usually a momentous occasion in their career, marked by ceremony and celebration. Yet, many lawyer's oaths today are unremarkable and irrelevant to modern law practice at best, and at worst, inappropriate, discriminatory, and obsolete. Drawing on a fifty-state survey of lawyer's oaths in the United States, this Article argues that it is past time to update lawyer's oaths in the United States and suggests drawing on human rights to make lawyer's oaths more accessible and impactful
Creating Architects of Justice: A Gift from Modern Ethics to Brady on Its 60th Anniversary
Sixty years ago, the U.S. Supreme Court announced the landmark decision Brady v. Maryland, which aimed to create a fairer justice system. Those charged with crimes were promised that the government would turn over evidence favorable to the defense, ensuring that trials would be a fair contest between the two sides. But six decades later, public confidence in our court system is at an all-time low. In this article, career prosecutor and criminal procedure professor David A. Lord argues that the best way to honor Brady on its sixtieth anniversary is to reinvigorate exculpatory evidence jurisprudence by aligning constitutional analysis with professional ethical guidance from the Model Rules of Professional Conduct. This Article traces the historical development of Brady principles over time, including the ways they have been expanded and contracted by the Supreme Court. The Court's decisions are then contrasted with the ethical mandates regarding exculpatory evidence that are contained in the Model Rules. The Article argues that by aligning constitutional principles with some of the professional ethical expectations of prosecutors, public confidence in the criminal justice system can be restored
Give Me a Break: Regulating Communications Between Attorneys and Their Witness-Clients During Deposition Recesses
Civil depositions typically include periodic breaks, and many attorneys naturally want to discuss the testimony with their witness-clients during those breaks. With the increase in remote depositions during the COVID-19 pandemic, an attorney and witness-client may wish to communicate even more frequently, for example, by exchanging text messages during the questioning. Case law varies greatly by jurisdiction and does not provide clear guidance on what types of communications during a deposition are permitted. This Article reviews the existing authorities, policy rationales, and other scholarly proposals before recommending an amendment to the Federal Rules of Civil Procedure to provide greater clarity and predictability to attorneys and their witness-clients
Harmonizing Legal Ethics Rules with Advocacy Norms
For millennia, advocates have used extra-evidentiary persuasion techniques to tip the scales in favor of their clients. They appeal to emotion, develop personal credibility, and tell stories to influence tribunals with irrelevancies. But in so doing, lawyers violate more recent legal ethics and adjudication rules that facially prohibit such widely accepted advocacy practices. This Article addresses the disconnect between these rules and advocacy norms. It argues that the lack of congruence between the rules as written and as enforced runs afoul of the rule of law. It concludes that legal ethics and adjudication rules should be revised to include a flexible reasonableness standard that is compatible with age-old advocacy norms
Judicial Ethics and Identity
This Article seeks to untangle a cluster of controversies and conundrums at the epicenter of the judiciary's role in American government, where a judge's identity as a person and role as a judge intersect. Part I synthesizes the traditional ethics schema, which proceeds from the premise that good judges decide cases on the basis of facts and law, unsullied by the extralegal influences of identity that make judges who they are as human beings. Part II discusses the empirical evidence, and the extent to which identity influences judicial decisionmaking in ways that contradict tenets of the traditional schema. Part III summarizes the state of judicial politics, wherein judges are called to task for departing from the traditional script and accepting the empirical evidence, which creates a three-way collision between the traditional model, the empirical evidence, and political reality. Finally, Part IV develops a framework for evaluating the relationship between judicial ethics and identity through which codes of judicial conduct can be deployed to mediate the perpetual and constructive tension between the salutary, tolerable, and unacceptable influences of identity on judicial conduct. Relying on a roadway metaphor, I argue that judicial ethics, properly understood, averts collisions between the traditional model, the empirical evidence, and political reality, by replacing an unrestricted intersection with a cloverleaf that channels the proper and improper influences of identity. Armed with this new framework, the Article illustrates the framework's application with reference to recent controversies, to the end of showing how it helps to resolve easy problems, elucidate hard ones, and isolate unavoidable pressure points that remain
Imposing Lawyer Sanctions in a Post-January 6 World
As was the case with the Watergate scandal fifty years ago, the number of lawyers involved in the efforts to overturn the 2020 election results has raised questions about the state of ethics within the legal profession. So far, the profession's response to the crisis has been to rely on the professional disciplinary system to address the alleged misconduct of the lawyers involved. This decision raises a question as to whether the collection of state professional disciplinary systems are up to the task. The conduct of Jeffrey Clark, the DOJ lawyer who sought to convince state officials to convene special legislative sessions to investigate supposed widespread voter fraud, raises particular concerns related to the disciplinary process as applied to government lawyers. The events surrounding the 2020 election and the January 6 attack on the Capitol provide the legal profession with an opportunity to take a fresh look at the Standards for Imposing Lawyer Sanctions and address existing shortcomings. This Article identifies some of those shortcomings and uses the case of Jeffrey Clark to highlight some of the Standards' particular pitfalls as they apply to government lawyers' misconduct
They Don't Know What They Don't Know': A Study of Diversion in Lieu of Lawyer Discipline
Lawyer misconduct can have devastating consequences for clients. But what is the appropriate regulatory response when lawyers make less serious mistakes? For almost thirty years, jurisdictions have offered some lawyers diversion in lieu of discipline. Diversion is intended to help educate lawyers or treat those with impairments so that they do not reoffend. Yet remarkably little is known about how diversion operates, whether it is used appropriately, and how well it seems to work. This Article addresses these questions. It draws on the limited published data and on interviews with disciplinary regulators in twenty-nine jurisdictions about their use of diversion. The Article reveals wide variations in the extent to which diversion is utilized and the circumstances under which it is used. It also describes significant differences among the jurisdictions in resource allocation and decision-making, which may affect how effectively diversion assists respondent lawyers. The Article makes recommendations for increasing the consistency of decisions to use diversion and improving the efficacy of diversion interventions. In addition, it discusses how diversion could be handled better to provide some satisfaction to complainants. Finally, and importantly, the Article stresses the need for regulators to collect and analyze data to ensure that diversion is adequately protecting the public
Taking on the Ethical Obligation of Technology Competency in the Academy: An Empirical Analysis of Practice-Based Technology Training Today
Today's lawyers must be technologically competent, per Model Rule of Professional Conduct 1.1. Law schools and law firms were keenly aware of this expectation and summarily responded. While law firms offered more professional development opportunities, law schools began offering various courses focusing on technology skills. These courses have increased and evolved over time as the curriculum has changed with the technology. First, we present the evolution of ethical requirements surrounding legal technology competency and offer a description of the lawyering competency models most discussed today. We then review data about technology trends at the most innovative law firms and examine curricular offerings in technology or technology-related fields at American Bar Association-accredited law schools. Next, we offer a comparative analysis of multiple empirical studies to determine whether key areas of technology training were reflected in the legal education curriculum and were sufficient to meet ABA ethical expectations. Finally, we recommend solutions law schools may implement to increase technology instruction, services, and infrastructure to meet ethical standards. ABA-accredited schools should implement these recommendations in light of ABA Standard 301(a), the forecasted changes planned by the National Conference of Bar Examiners, and the new virtual practice landscape set by the COVID-19 pandemic
Legal Ethics Education: Seeking-and Creating-a Stronger Community of Practice
This Article uses Community of Practice ("CoP") frameworks and insights to examine legal ethics, a vital but challenging part of legal education and practice. CoP is a template to explain how the knowledge we learn is inseparable from the social situations in which it is "practiced" and how the processes through which we learn can be understood as a trajectory toward becoming competent knowers within a community. Increasingly, CoP also captures how communities might be initiated and sustained to advance that practice or expert domain. CoP theory illuminates the difficult conflicts both in teaching and in learning legal ethics, conflicts driven by the clash between "ethics-as-rules" and "ethics-as-judgment." Using CoP ideas, this Article argues that legal ethics suffers from a confusing mission and an academic-professional community that is not as strong or interactive as it should be. But the CoP framework also offers possible solutions. This Article shares the author's and others' efforts to improve and align legal ethics. It also outlines what would be essential features for a vibrant community in stewardship of this domain. The Article focuses on the Australian context with close comparison to that of the United States