| Acknowledgments |
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xxxi | |
| Acknowledgments (Previous Editions) |
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xxxiii | |
| Preface to Fifth Edition |
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xxxv | |
| Table of Cases |
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xxxvii | |
| Table of Rules, Opinions, and Statutes |
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xlvii | |
| Part One Rules And Reflections |
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3 | (18) |
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A A Practicing Lawyer's Approach to Ethics |
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3 | (2) |
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B A Brief Word About the Organization of This Book |
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5 | (2) |
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C The Rules and Standards of Our Profession |
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7 | (4) |
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11 | (7) |
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11 | (4) |
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Unequal Justice: Lawyers And Social Change In Modern America |
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12 | (1) |
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14 | (1) |
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15 | (6) |
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Three Generations of U.S. Lawyers: Generalists, Specialists, Project Managers |
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15 | (1) |
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18 | (1) |
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18 | (3) |
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Chapter 1 Initial Reflections on Ethics, Morality, and Justice in an Adversary System |
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21 | (24) |
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21 | (20) |
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1 Some Initial Reflections, and Some Thoughts from Abe Lincoln |
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21 | (1) |
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22 | (1) |
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2 The Duty of Advocacy and Defending the Guilty |
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22 | (2) |
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The Conscience of a Lawyer |
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23 | (1) |
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24 | (1) |
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3 Should Legal Ethics Ignore Social Morality? |
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24 | (2) |
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A Rolling Ethic Gathers No Moss |
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25 | (1) |
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26 | (1) |
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4 Are Lawyers Less Moral than Other People? |
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26 | (1) |
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27 | (3) |
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Moral Responsibility in Professional Ethics |
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28 | (1) |
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30 | (1) |
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6 Some Further Thoughts on Ethics and Morality |
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30 | (2) |
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7 "Is There a Collective or Institutional Ethic Beyond the Ethics of the Individual?" |
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32 | (5) |
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32 | (1) |
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37 | (1) |
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8 Ethics and Cultural Differences |
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37 | (1) |
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9 When the Individual Alone Chooses to Act |
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38 | (2) |
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Bar Exam: He Saved a Life, Got No Extra Time |
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38 | (1) |
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39 | (1) |
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10 Going the Whole Nine Yards |
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40 | (1) |
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41 | (4) |
| Part Two The Lawyer-Client Relationship |
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Chapter 2 Undertaking a Case |
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45 | (74) |
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Problem 1 Hanging Out Your Shingle |
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45 | (22) |
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45 | (1) |
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45 | (1) |
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46 | (18) |
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1 Asking Questions About "Competence" |
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46 | (1) |
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2 Sleeping Lawyers and Measuring Standards of-Competence |
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47 | (1) |
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48 | (1) |
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49 | (1) |
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Don't Just Talk About Trust-Earn It |
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49 | (1) |
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5 Does the Current Law School Environment Nurture Competence? |
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51 | (4) |
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6 Legal "Internships" After Graduation, Continuing Education, and Incubators |
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55 | (1) |
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56 | (1) |
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When Big Brother Is Watching [ Out for] You: Mentoring Lawyers, Choosing a Mentor, and Sharing Ten Virtues from My Mentor |
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57 | (1) |
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My Mentor's Best Advice-Ten Virtues |
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58 | (1) |
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8 Competence and Negligence |
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59 | (1) |
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Legal Malpractice: Reforming Lawyers and Law Professors |
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60 | (1) |
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62 | (1) |
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9 Malpractice and the Wrong Client |
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62 | (1) |
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The Hazard: Failure to Screen Cases, In Why Bad Things Happen To Good Lawyers, A Symposium |
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63 | (1) |
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64 | (1) |
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10 Referrals and Fee Sharing |
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64 | (1) |
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64 | (3) |
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Problem 2 Must We Take This Case? |
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67 | (20) |
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67 | (1) |
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67 | (3) |
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70 | (14) |
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1 Ethical Rules and Their Limited Utility |
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70 | (1) |
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2 The Courageous Stand of Anthony Griffin |
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70 | (2) |
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3 Representing the Unpopular in a Politically Polarized World |
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72 | (1) |
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4 Law Firm Associates, Credit Suisse, and the Decision to Take a Case |
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73 | (1) |
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5 Happy, Healthy, and Ethical? |
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74 | (1) |
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On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession |
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75 | (1) |
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79 | (1) |
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6 Appointments by the Court |
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80 | (1) |
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7 Mr. Mallard Goes to Washington |
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81 | (1) |
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The Law; Can Lawyers Be Forced to Represent the Poor? |
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81 | (1) |
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83 | (1) |
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84 | (3) |
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Problem 3 Taking on a Client and Getting Paid |
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87 | (32) |
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87 | (1) |
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87 | (2) |
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89 | (26) |
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1 When Does the Attorney-Client Relationship Begin? |
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89 | (1) |
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2 "Client for Purposes of Confidentiality"? |
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90 | (2) |
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3 Accidental and Limited Clients, and Others Who May Be Owed a Duty |
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92 | (4) |
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4 Engagement Agreements and "Scope of Representation" |
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96 | (3) |
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99 | (1) |
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Brobeck, Phleger & Harrison LLP Contingency Fee Contract |
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99 | (1) |
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102 | (1) |
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6 Structured Settlements and Other Contingency Fee Issues |
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102 | (1) |
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103 | (1) |
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Brobeck, Phleger & Harrison v. Telex Corp. |
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104 | (1) |
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106 | (1) |
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106 | (1) |
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109 | (1) |
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8 Must Reasonable Fees Be Proportional to a Case's Dollar Value? |
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110 | (1) |
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9 Business Relationships, "IPOs," and Lawyer-Client "Deals" |
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111 | (1) |
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Investing in Clients: Sunny Gains, But Others See Ethics Cloud |
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112 | (1) |
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114 | (1) |
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115 | (4) |
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Chapter 3 Communication and Confidentiality |
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119 | (86) |
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Problem 4 Roger Earl Receives Some Evidence |
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119 | (24) |
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119 | (1) |
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119 | (1) |
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120 | (20) |
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1 Mr. Garrow, His Lawyers, and Two Buried Bodies |
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120 | (1) |
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Slayer's 2 Lawyers Kept Secret of 2 More Killings |
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121 | (1) |
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123 | (1) |
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124 | (1) |
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125 | (1) |
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2 The Ryder and Meredith Cases |
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126 | (1) |
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127 | (1) |
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127 | (1) |
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127 | (1) |
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130 | (1) |
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3 How Much Disclosure Is Required? |
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130 | (1) |
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4 Are There Limits to Confidentiality? |
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131 | (1) |
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Rethinking Confidentiality |
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131 | (1) |
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134 | (1) |
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5 Confidentiality and Privilege: Not the Same |
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134 | (2) |
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6 Tarasoff, the Duty to Warn, and Its Consequences |
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136 | (1) |
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7 Balancing the Duty to Warn: Pulling the Trigger vs. Jumping the Gun |
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137 | (1) |
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8 A Terrorist Exception to Confidentiality? |
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138 | (1) |
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Lawyers' Suit Proceeds over Taping of Conversations with Clients |
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139 | (1) |
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140 | (1) |
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140 | (3) |
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Problem 5 When Does a Lawyer Talk Too Much? |
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143 | (30) |
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143 | (1) |
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143 | (2) |
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145 | (25) |
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1 Do "Loose Lips Sink Ships"? |
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145 | (1) |
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2 Is "Absolute" Confidentiality Truly Absolute? |
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146 | (1) |
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Telling Stories and Keeping Secrets |
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146 | (1) |
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149 | (1) |
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3 The "Wrong Murderer" Cases |
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150 | (4) |
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4 Lawyer-to-Lawyer Consultations, Client Confidences, and a Dense ABA Opinion |
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154 | (2) |
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5 When the Lawyer (Not the Client) Needs the Consultation |
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156 | (1) |
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E-Pass Technologies, Inc. v. Moses & Singer, LLP |
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157 | (1) |
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6 "MDPs," Unbundling, and Confidentiality |
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158 | (1) |
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Legal Services Provision Through Multidisciplinary Practice-Encouraging Holistic Advocacy While Protecting Ethical Interests |
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159 | (1) |
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160 | (1) |
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7 Does Confidentiality Extend to a Client's Whereabouts? |
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161 | (1) |
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8 Is a Client's Identity Confidential? |
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162 | (1) |
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Hide and Secrets: The Boundaries of Privilege |
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162 | (1) |
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164 | (1) |
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9 Confidentiality and Problems at Guantanamo |
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165 | (1) |
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Brief of Amici Professors of Ethics and Lawyers Practicing in the Professional Responsibility Field, Center for Constitutional Rights v. Bush |
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166 | (1) |
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170 | (1) |
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170 | (3) |
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Problem 6 Technology + Confidentiality = Trouble |
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173 | (32) |
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173 | (1) |
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174 | (2) |
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176 | (26) |
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1 Confidential Information in the Digital Age |
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176 | (1) |
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177 | (4) |
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3 The Cloud and Virtual Law Offices |
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181 | (1) |
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4 The Problem with Websites |
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182 | (1) |
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Attorney Liability for Internet Related Activity: An Early Analysis |
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184 | (1) |
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186 | (1) |
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5 Metadata or Embedded Data |
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186 | (3) |
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189 | (1) |
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Aerojet-General Corp. v. Transport Indemnity Insurance |
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189 | (1) |
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192 | (1) |
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7 The ABA's Changing View |
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192 | (1) |
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8 State Fund, Rico, Notice to Counsel, and Beyond |
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193 | (3) |
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9 Does Inadvertent Disclosure Waive the Client's Privilege? |
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196 | (1) |
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10 Electronic Communication and Malpractice |
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197 | (1) |
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11 Tweeting, Friending, Social Networking, and More |
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198 | (3) |
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12 "Geek-ifying" Law School |
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201 | (1) |
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202 | (3) |
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Chapter 4 Loyalties and Conflicts of Interest |
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205 | (172) |
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Problem 7 When Are Two Clients Too Many? |
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207 | (26) |
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207 | (1) |
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207 | (2) |
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209 | (20) |
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1 Conflicts of Interest and Impaired Loyalty |
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209 | (1) |
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2 Conflicts Among the Stars |
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210 | (2) |
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3 Lawyers "for the Situation" |
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212 | (2) |
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4 Multiple Clients and Informed Consent |
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214 | (1) |
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Risky Business...Representing Multiple Interests |
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214 | (1) |
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216 | (1) |
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5 Confidentiality and Joint Representation |
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217 | (1) |
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6 Adequate Disclosure, Reasonable Consent, and "Unwaivable" Conflicts |
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218 | (2) |
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7 Prospective or "Advance" Waivers |
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220 | (3) |
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8 Conflicts and Criminal Defense |
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223 | (1) |
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223 | (1) |
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226 | (1) |
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9 Criminal Defense Conflicts, Waivers, and Effective Assistance of Counsel |
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227 | (1) |
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229 | (1) |
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229 | (4) |
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Problem 8 Who Is My Client? |
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233 | (32) |
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233 | (1) |
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233 | (1) |
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234 | (28) |
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234 | (1) |
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Indicted Ex-United Way Chief Says Lawyers Ratted on Him |
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235 | (1) |
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237 | (1) |
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2 Whom Do You Tell in the Organization? |
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238 | (1) |
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239 | (1) |
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240 | (1) |
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242 | (1) |
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243 | (1) |
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Upjohn Co. v. United States |
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244 | (1) |
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245 | (1) |
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5 Whither the Privilege After Upjohn? |
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245 | (1) |
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Payton v. New Jersey Turnpike Authority |
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246 | (1) |
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247 | (1) |
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6 Parents and Subsidiaries |
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247 | (3) |
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7 Which Constituents of the Corporation Get a Confidential Relationship? |
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250 | (1) |
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Getting the Upjohn Warning Right in Internal Investigations |
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250 | (1) |
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252 | (1) |
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Warning Your Client That You're Not His Lawyer |
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252 | (1) |
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254 | (1) |
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8 Side-Switching and Changing Loyalties |
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254 | (1) |
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Tekni-Plex v. Meyner and Landis |
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255 | (1) |
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257 | (1) |
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9 "Thrust-Upon" Conflicts |
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257 | (1) |
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The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics, Formal Opinion 2005-05 |
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258 | (1) |
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258 | (2) |
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10 The United Mine Workers Litigation |
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260 | (1) |
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11 Lawyers for Partnerships |
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261 | (1) |
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262 | (3) |
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Problem 9 What Happens When Your Personal Interests Get in the Way? |
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265 | (30) |
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265 | (1) |
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265 | (2) |
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267 | (24) |
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1 When Lawyers Have Something to Gain |
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267 | (1) |
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2 Can We Expect Lawyers to Act "Better"? |
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268 | (1) |
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Are Differences Among the Attorney Conflict of Interest Rules Consistent with Principles of Behavioral Economics? |
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268 | (1) |
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270 | (1) |
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3 Fee Arrangements and Conflicts of Interest |
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271 | (1) |
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271 | (1) |
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274 | (1) |
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4 The Problem of Determining the Attorney's Fee Independently of the Client's Recovery |
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274 | (1) |
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274 | (1) |
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277 | (1) |
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California State Bar Formal Opinion No. 1994-135 (1994) |
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277 | (2) |
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5 Contingency Fees in Criminal Cases? |
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279 | (1) |
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6 Failure to Pay Fees and Withdrawal |
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280 | (1) |
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7 Don't Slam the Door Behind You |
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281 | (1) |
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Breaking Off the Attorney-Client Relationship |
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281 | (1) |
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283 | (1) |
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8 Who "Owns" the Case File? |
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283 | (1) |
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9 Close Relationships and Sex with Clients |
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284 | (2) |
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10 Lawyers' Personal and Political Agendas |
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286 | (1) |
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Oasis West Realty, LLC v. Goldman |
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286 | (1) |
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290 | (1) |
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11 A Word About "Positional Conflicts" |
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290 | (1) |
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291 | (1) |
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291 | (4) |
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Problem 10 Loyalty, Imputation, and the Business of Being a Profession |
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295 | (32) |
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295 | (1) |
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295 | (2) |
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297 | (27) |
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1 Conflicts, "Imputation," and Motions to Disqualify Counsel |
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297 | (1) |
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Cinema 5, Ltd. v. Cinerama, Inc. |
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299 | (1) |
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299 | (1) |
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2 The "Hot Potato" Doctrine |
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300 | (1) |
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3 Lawyer Mobility and Client Loyalty |
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301 | (1) |
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Krutzfeldt Ranch, LLC v. Pinnacle Bank |
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301 | (1) |
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304 | (1) |
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4 Former Representations and the "Substantial Relationship" Test |
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305 | (2) |
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307 | (1) |
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6 Migrating Lawyers, Imputation, and the Substantial Relationship Test |
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308 | (3) |
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7 Screening: A Brief History |
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311 | (3) |
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8 What Does the Future Hold for the Duty of Loyalty? |
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314 | (4) |
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9 Corporate Subsidiaries, Client Interests, and Disqualification |
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318 | (1) |
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Morrison Knudsen Corp. v. Hancock, Rothert er Bunshoft |
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318 | (1) |
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322 | (1) |
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10 Shared Space and Non-Lawyer Migration |
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322 | (2) |
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324 | (3) |
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Problem 11 Class Action and "Mass Actions" |
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327 | (30) |
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327 | (1) |
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327 | (2) |
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329 | (25) |
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1 A Brief Class Action Introduction |
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329 | (1) |
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2 Embarking on a Class Action Case |
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330 | (2) |
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3 Who Is the Lawyer's Client in a Class Action? |
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332 | (1) |
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Huh? I'm the Lead Plaintiff? |
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332 | (1) |
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334 | (1) |
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4 Are Passive Class Members Clients? |
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335 | (1) |
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5 Other Class Action Conflicts Issues |
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336 | (1) |
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Amchem Products, Inc. v. Windsor |
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337 | (1) |
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341 | (1) |
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6 Collusion, Attorneys' Fees, and Settlements of Dubious Value |
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341 | (1) |
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In re Bluetooth Headset Products Liability Litigation |
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342 | (1) |
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343 | (1) |
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7 Representing Large Numbers of Individual Parties |
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344 | (1) |
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8 The Current State of the Law |
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345 | (2) |
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9 Do the Current Rules Foster Toxic Settlements? |
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347 | (1) |
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Johnson v. Nextel Communications, Inc. |
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347 | (1) |
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349 | (1) |
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10 A Problem in Need of a Solution? |
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350 | (4) |
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354 | (3) |
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Problem 12 A Day in the Life of Lynch, Dahl & Wong |
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357 | (20) |
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357 | (1) |
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357 | (2) |
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359 | (15) |
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1 Coverage Counsel and Liability Counsel |
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359 | (1) |
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Parsons v. Continental National American Group |
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359 | (1) |
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360 | (1) |
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2 Loyalty and the Insurance Defense Lawyer |
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360 | (1) |
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Betts v. Allstate Insurance Co. |
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361 | (1) |
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362 | (1) |
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3 Is Dual Representation Realistic? Is the "Unique" Relationship Workable? |
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362 | (2) |
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4 More Dual Representation Problems, and a Florida Solution |
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364 | (1) |
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Robert A. Clifford, Sunshine State Enlightens Clients' Rights |
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364 | (1) |
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5 Two Clients or Just One? Does the Ability to Sue Provide the Solution? |
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365 | (1) |
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Atlanta International Insurance Co. v. Bell |
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365 | (1) |
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366 | (1) |
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6 Two Clients, One Client, or Perhaps One-and-a-Half? |
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367 | (1) |
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Remodeling Dimensions, Inc. v. Integrity Mutual Ins. Co. |
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368 | (1) |
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|
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369 | (1) |
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7 Limiting Defense Costs vs. Insureds' Confidentiality |
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370 | (1) |
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Billing Guidelines and Fee Audits of Defense Lawyers Struck Down |
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370 | (1) |
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371 | (1) |
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8 Insurance Company Employee and Defense Counsel: Another Dual Role? |
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372 | (1) |
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American Insurance Ass'n v. Kentucky Bar Ass'n |
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372 | (1) |
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374 | (1) |
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374 | (3) |
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Chapter 5 Who Controls the Case? How Should Lawyers and Clients Share Decision-Making? |
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377 | (50) |
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Problem 13 Is the Lawyer the Client's Savior or Mouthpiece? |
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377 | (22) |
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377 | (1) |
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377 | (2) |
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379 | (18) |
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1 Two Extremes of Lawyering |
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379 | (1) |
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2 Who Decides? The Allocation of Authority |
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380 | (1) |
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3 Client Autonomy When the Stakes Are the Highest |
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381 | (1) |
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382 | (1) |
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383 | (1) |
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383 | (1) |
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386 | (1) |
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4 When a Client's Ability Is "Impaired" |
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387 | (1) |
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The Kaczynski Dilemma, A Defense Lawyer's Ethical Duty to a Self-Destructive and Mentally Ill Client |
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387 | (1) |
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389 | (1) |
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Killer's Demand to Die Changes to Plea for Life |
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389 | (1) |
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390 | (1) |
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5 Mental Impairment and Psychotropic Medications |
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390 | (1) |
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6 Mental Impairment and Client Autonomy |
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391 | (1) |
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393 | (1) |
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394 | (1) |
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395 | (1) |
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In re: Formal Advisory Opinion No. 16-2 |
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395 | (1) |
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396 | (1) |
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397 | (2) |
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Problem 14 Practicing Law in a Multi-Cultural World |
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399 | (28) |
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399 | (1) |
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400 | (1) |
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401 | (20) |
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1 Lawyer-Client Dialogues Across Cultural Lines |
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401 | (1) |
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Connection, Capacity and Morality in Lawyer-Client Relationships: Dialogues and Commentary |
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402 | (1) |
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407 | (1) |
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2 Decision-Making in the "Global Village" |
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407 | (1) |
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3 Client-Centered Lawyering and Abuse Cases |
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408 | (1) |
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Who's Listening? Introducing Students to Client-Centered, Client-Empowering, and Multidisciplinary Problem-Solving in a Clinical Setting |
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409 | (1) |
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410 | (1) |
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4 White Lawyers and Culturally Diverse Clients |
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411 | (1) |
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White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law |
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411 | (1) |
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413 | (1) |
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5 Multi-Cultural Lawyering |
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414 | (1) |
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Multicultural Lawyering: Teaching Psychology to Develop Cultural Self-Awareness |
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414 | (1) |
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417 | (1) |
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6 Global Law and Cultural Imperialism |
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417 | (1) |
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U.S. Legal Ethics: The Coming of Age of Global and Comparative Perspectives |
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417 | (1) |
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419 | (1) |
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7 The Impact of U.S. Foreign Policy |
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419 | (1) |
|
Now, Being a Yankee Isn't Dandy |
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419 | (1) |
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421 | (1) |
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421 | (6) |
| Part Three Balancing The Duty Of Advocacy With The Duty To The Legal System |
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Chapter 6 What Price Truth? What Price Justice? What Price Advocacy? |
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|
427 | (74) |
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Problem 15 How Far Should Richie Go to Get His Client Off? |
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427 | (26) |
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427 | (1) |
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427 | (2) |
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429 | (21) |
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1 The "Adversary Theorem" Revisited |
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429 | (1) |
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2 Is Advocacy a Search for Truth or Justice? |
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430 | (1) |
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The Lawyer's Role and Responsibility in Modern Society |
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430 | (1) |
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432 | (1) |
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432 | (1) |
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434 | (1) |
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4 Representing the Guilty Client |
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434 | (1) |
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5 True Evidence, False Defense |
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435 | (1) |
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435 | (1) |
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436 | (1) |
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6 Criminal Defense Justifications |
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437 | (1) |
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437 | (1) |
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438 | (1) |
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7 Taking Advantage on Cross-Examination |
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438 | (1) |
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Fear and Confusion in Court Plague Elderly Crime Victims |
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439 | (1) |
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441 | (1) |
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8 How Far Should One Go with a Guilty Client? |
|
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441 | (1) |
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The Criminal Defense Lawyer's "Different Mission": Reflections on the "Right" to Present a False Case |
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442 | (1) |
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444 | (1) |
|
Reasonable Doubts Are Where You Find Them: A Response to Professor Subin's Position on the Criminal Lawyer's "Different Mission" |
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445 | (1) |
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|
Is This Lie Necessary? Further Reflections on the Right to Present a False Defense |
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446 | (1) |
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|
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9 The Supreme Court Speaks |
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447 | (1) |
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447 | (1) |
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10 Cross-Examining the Truthful Witness |
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447 | (1) |
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Understanding Lawyers' Ethics |
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448 | (1) |
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450 | (1) |
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450 | (3) |
|
Problem 16 When the Client Insists on Lying |
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453 | (26) |
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453 | (1) |
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453 | (1) |
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454 | (24) |
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1 A Brief Regulatory History |
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454 | (1) |
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2 Is Confession Evidence Overvalued? |
|
|
455 | (2) |
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3 When Do You Know You "Know"? |
|
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457 | (1) |
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458 | (1) |
|
Understanding Lawyers' Ethics |
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459 | (1) |
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461 | (1) |
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461 | (1) |
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461 | (1) |
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462 | (1) |
|
6 The Aftermath of Whiteside |
|
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463 | (1) |
|
7 Freedman's Client's Perjury Described and His Solution Offered |
|
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464 | (1) |
|
Understanding Lawyers' Ethics |
|
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465 | (1) |
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467 | (1) |
|
8 Is There a Solution to the "Trilemma"? Is There a Majority Rule? |
|
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468 | (2) |
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470 | (2) |
|
10 Rectification, and Jones v. Clinton |
|
|
472 | (2) |
|
11 Witness Preparation and Its Limits: "The Most Difficult Question" |
|
|
474 | (1) |
|
Lawyers' Ethics In An Adversary System |
|
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475 | (1) |
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477 | (1) |
|
|
|
478 | (1) |
|
Problem 17 Pushing the Envelope and Coming Clean to the Court |
|
|
479 | (22) |
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|
|
479 | (1) |
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479 | (2) |
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481 | (18) |
|
|
|
481 | (1) |
|
Happy (?) Birthday Rule 11 |
|
|
482 | (1) |
|
|
|
2 Adequate Investigation and Relying on the Client |
|
|
484 | (1) |
|
Hadges v. Yonkers Racing Corp. |
|
|
485 | (1) |
|
|
|
489 | (1) |
|
3 Continuing Investigation, Continuing Duty? |
|
|
489 | (1) |
|
4 Tort Claims for Frivolous Lawsuits |
|
|
490 | (1) |
|
5 Other Rules, Statutes, and Methods of Sanctions |
|
|
491 | (1) |
|
Editorial: Yes to Nosy Questions: Coercive Lawsuits Shouldn't Keep People from Exercising their Constitutional Rights |
|
|
492 | (1) |
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|
|
493 | (1) |
|
6 Disclosure of Adverse Authority |
|
|
494 | (1) |
|
7 Failure to Disclose and Sanctions |
|
|
495 | (1) |
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|
|
495 | (2) |
|
8 Arguing for "Extension of Existing Law" |
|
|
497 | (1) |
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|
498 | (1) |
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|
|
499 | (2) |
|
Chapter 7 Tactics, Free Speech, and Playing by the Rules |
|
|
501 | (140) |
|
Problem 18 Is Discovery Survival of the Fittest? |
|
|
501 | (30) |
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|
|
501 | (1) |
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|
501 | (1) |
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|
|
502 | (27) |
|
1 Discovery "Hardball": Bogle & Gates and the "Dear Doctor" Letters |
|
|
502 | (3) |
|
2 Sources of Discovery Abuse |
|
|
505 | (1) |
|
Civil Discovery: How Bad Are the Problems? |
|
|
505 | (1) |
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|
|
|
|
508 | (1) |
|
3 Is Access to Discovery an Ethical Issue? |
|
|
508 | (1) |
|
Will E-Discovery Get Squeezed? |
|
|
508 | (1) |
|
|
|
|
|
510 | (1) |
|
4 Are Depositions Incubators for Abuse? |
|
|
510 | (1) |
|
Avista Management, Inc., d/b/a Avista Plex, Inc. v. Wausau Underwriters Insurance Company |
|
|
513 | (1) |
|
5 One Solution: "Issue" Sanctions and Dismissal |
|
|
514 | (1) |
|
Did GM and Its Lawyers Suborn Perjury in Georgia Case? |
|
|
515 | (1) |
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|
|
|
|
516 | (1) |
|
State ex rel. Abner v. Elliott, Judge |
|
|
517 | (1) |
|
|
|
518 | (1) |
|
6 An Extreme Example of Discovery Abuse |
|
|
519 | (1) |
|
Tobacco's Foes Decide to Target the Role of Industry's Lawyers |
|
|
519 | (1) |
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|
|
|
|
|
|
520 | (1) |
|
7 An Electronic Discovery Primer |
|
|
521 | (1) |
|
Avoiding Electronic Discovery Disputes: Practice Questions Answered |
|
|
521 | (1) |
|
|
|
|
|
523 | (1) |
|
8 Two Events That Shaped Electronic Discovery |
|
|
523 | (2) |
|
9 E-Discovery and Failure to Disclose |
|
|
525 | (1) |
|
10 Discovery, Making Money, and a Kinder Approach |
|
|
526 | (1) |
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|
|
527 | (1) |
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|
|
528 | (1) |
|
|
|
529 | (2) |
|
Problem 19 The Fine Line Between Posturing and Lying in Negotiation |
|
|
531 | (26) |
|
|
|
531 | (1) |
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|
|
531 | (2) |
|
|
|
533 | (22) |
|
1 Squaring Negotiation with Candor |
|
|
533 | (1) |
|
2 Candor, the "Prisoner's Dilemma," and Judge Rubin's Views |
|
|
534 | (1) |
|
A Causerie on Lawyers' Ethics in Negotiation |
|
|
535 | (1) |
|
|
|
|
|
537 | (1) |
|
3 A Roundtable on Negotiation Ethics |
|
|
537 | (1) |
|
In Settlement Talks, Does Telling the Truth Have Its Limits? |
|
|
538 | (1) |
|
|
|
|
|
542 | (1) |
|
4 The Corporate Lawyer's Perspective |
|
|
543 | (1) |
|
Contract Negotiating: How Much Truthfulness Is Required |
|
|
543 | (1) |
|
|
|
Misrepresentation by Omission in Settlement Negotiations: Should There Be a Silent Safe Harbor? |
|
|
545 | (1) |
|
|
|
|
|
548 | (1) |
|
5 The Gulf Between Theory and Practice |
|
|
549 | (1) |
|
6 Civil Liability and Malpractice Concerns, |
|
|
549 | (1) |
|
Facebook, Inc. v. Pacific Northwest Software, Inc. |
|
|
550 | (1) |
|
|
|
551 | (1) |
|
7 The Duty of the Prosecutor |
|
|
552 | (1) |
|
|
|
552 | (1) |
|
|
|
554 | (1) |
|
|
|
555 | (2) |
|
Problem 20 "Honest Abe's" Trial Tactics |
|
|
557 | (24) |
|
|
|
557 | (1) |
|
|
|
557 | (2) |
|
|
|
559 | (5) |
|
1 Courtroom Tactics and "Parlor Tricks" |
|
|
559 | (1) |
|
2 Contempt and Client Identification |
|
|
559 | (1) |
|
|
|
560 | (1) |
|
|
|
562 | (2) |
|
|
|
564 | (1) |
|
A Leon Higginbotham, Jr., Aderson Bellegarde Francois & Linda Y. Yueh, The O.J. Simpson Trial: Who Was Improperly "Playing the Race Card"? |
|
|
564 | (3) |
|
|
|
567 | (1) |
|
|
|
568 | (1) |
|
Veiled Women in the American Courtroom: Is the Niqab a Barrier to Justice? |
|
|
569 | (1) |
|
|
|
|
|
571 | (1) |
|
5 Ethics, Trial Tactics, and Modern Techniques of Jury Selection |
|
|
571 | (1) |
|
6 Social Media and Jury Selection |
|
|
572 | (1) |
|
7 Jury Selection and Race |
|
|
573 | (1) |
|
Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy |
|
|
573 | (1) |
|
|
|
578 | (1) |
|
|
|
578 | (3) |
|
Problem 21 Civility, Contempt of Court, Free Speech, and Publicity |
|
|
581 | (30) |
|
|
|
581 | (1) |
|
|
|
581 | (3) |
|
|
|
584 | (25) |
|
1 Is There an Ethical Duty of Civility and Professionalism? |
|
|
584 | (1) |
|
Texas Rules of Court, Texas Lawyer's Creed-A Mandate for Professionalism |
|
|
585 | (1) |
|
|
|
586 | (1) |
|
2 Can Ethics Rules Be Used to Enforce Courtesy or Civility? |
|
|
586 | (1) |
|
|
|
586 | (1) |
|
|
|
588 | (1) |
|
3 Are Courts Helpless in the Face of Uncivil and Discourteous Conduct? |
|
|
589 | (3) |
|
4 Should Civility Be Regulated? |
|
|
592 | (1) |
|
Masking the Truth to Resolve Competing Duties |
|
|
592 | (1) |
|
|
|
|
|
594 | (1) |
|
|
|
595 | (2) |
|
6 Publicity and the Gentile Case |
|
|
597 | (1) |
|
Gentile v. State Bar of Nevada |
|
|
599 | (1) |
|
|
|
602 | (1) |
|
7 The Revised ABA Rule and Other Alternatives |
|
|
602 | (2) |
|
|
|
604 | (1) |
|
Standing Committee on Discipline, United States District Court for the Central District of California v. Yagman |
|
|
605 | (4) |
|
|
|
609 | (2) |
|
Problem 22 Advocates' and Mediators' Ethical Dilemmas in Mediation |
|
|
611 | (30) |
|
|
|
611 | (1) |
|
|
|
611 | (3) |
|
|
|
614 | (25) |
|
|
|
614 | (2) |
|
2 Ethical Rules for Mediators |
|
|
616 | (3) |
|
3 Confidentiality and "Fairness" Under the Uniform Act and California Case Law |
|
|
619 | (1) |
|
National Conference of Commissioners on Uniform State Laws, Meditation Act Summary |
|
|
619 | (1) |
|
|
|
620 | (1) |
|
|
|
621 | (1) |
|
|
|
623 | (1) |
|
4 Ethical Issues Facing Practicing Lawyers in Mediation |
|
|
623 | (2) |
|
|
|
625 | (1) |
|
Leaving the Firm, Conflicts, Firm Economics and Issues of Culture Can Stifle ADR Practice |
|
|
625 | (1) |
|
|
|
|
|
626 | (1) |
|
6 Dealing with Mediator Conflicts of Interest |
|
|
627 | (1) |
|
7 Power: An Ethical Issue? |
|
|
628 | (1) |
|
8 Secret Settlements: Justice for Whom? |
|
|
629 | (2) |
|
9 What Is a "Secret Settlement"? |
|
|
631 | (1) |
|
10 Is Secrecy an Ethical Issue? |
|
|
632 | (1) |
|
To Squeal or Not to Squeal: Ethical Obligations of Officers of the Court in Possession of Information of Public Interest |
|
|
633 | (1) |
|
|
|
|
|
635 | (2) |
|
11 Is There a Legislative Solution? |
|
|
637 | (1) |
|
California Senate Bill SB 820 |
|
|
637 | (1) |
|
|
|
638 | (1) |
|
|
|
639 | (2) |
|
Chapter 8 The Special Problems of the Government Lawyer |
|
|
641 | (64) |
|
Problem 23 Must A Prosecutor Play by Different Rules? |
|
|
641 | (36) |
|
|
|
641 | (1) |
|
|
|
641 | (2) |
|
|
|
643 | (30) |
|
1 The Special Role of the Prosecutor |
|
|
643 | (1) |
|
Criminal Justice Standards For The Prosecution Function |
|
|
644 | (1) |
|
|
|
|
|
649 | (1) |
|
2 Must Prosecutors Follow Higher Standards in Disclosing Information? |
|
|
650 | (2) |
|
3 Discretion, Selective Prosecution, and Power |
|
|
652 | (5) |
|
4 Power and Abuse of Power |
|
|
657 | (5) |
|
|
|
662 | (1) |
|
6 Under-Prosecuting the Prosecutors |
|
|
663 | (2) |
|
7 Prosecutorial Accountability |
|
|
665 | (1) |
|
Connick, District Attorney v. Thompson |
|
|
667 | (1) |
|
|
|
669 | (1) |
|
8 And If a Lawyer Does Follow the Rules |
|
|
670 | (1) |
|
|
|
670 | (1) |
|
|
|
673 | (1) |
|
|
|
673 | (4) |
|
Problem 24 What's a City Attorney to Do? |
|
|
677 | (28) |
|
|
|
677 | (1) |
|
|
|
677 | (2) |
|
|
|
679 | (22) |
|
1 Conflicting Advice in Los Angeles |
|
|
679 | (1) |
|
City Atty. Role Raises Conflict of Interest Issue |
|
|
679 | (1) |
|
|
|
|
|
681 | (1) |
|
|
|
681 | (2) |
|
3 How Limited Is the Governmental Attorney-Client Privilege? |
|
|
683 | (1) |
|
|
|
683 | (1) |
|
|
|
687 | (1) |
|
4 Limits on Confidentiality? Cindy Ossias Blows the Whistle |
|
|
688 | (1) |
|
California State Bar Trial Counsel, Letter to Counsel for Cindy Ossias |
|
|
690 | (1) |
|
|
|
691 | (1) |
|
5 Representing Different Governmental Agencies |
|
|
692 | (1) |
|
Civil Service Comm'n of San Diego County v. Superior Court |
|
|
692 | (1) |
|
|
|
693 | (1) |
|
6 Representing the Government and Its Individual Employees |
|
|
693 | (1) |
|
Barkley v. City of Detroit |
|
|
694 | (1) |
|
|
|
696 | (1) |
|
|
|
697 | (1) |
|
8 The Part-Time Government Lawyer |
|
|
698 | (1) |
|
9 The Government Lawyer as Employee |
|
|
699 | (1) |
|
10 Who Is the Client, Revisited |
|
|
699 | (1) |
|
Bar, Agencies Haggle Over Defining "Client": For Whom Does the Government Lawyer Toil? |
|
|
700 | (1) |
|
|
|
|
|
701 | (4) |
|
Chapter 9 The Lawyer Acting as Adviser |
|
|
705 | (56) |
|
Problem 25 Advising the Corporate Client That's Made a Mistake |
|
|
705 | (30) |
|
|
|
705 | (1) |
|
|
|
705 | (2) |
|
|
|
707 | (25) |
|
1 Should Counsel Ever "Blow the Whistle"? |
|
|
707 | (1) |
|
Lawyers And Justice: An Ethical Study |
|
|
707 | (1) |
|
|
|
|
|
710 | (1) |
|
2 Roger Tuttle's Mea Culpa |
|
|
711 | (1) |
|
3 Sea Change, Part One-Sarbanes-Oxley and the SEC |
|
|
712 | (1) |
|
Why No One Blames the Lawyers |
|
|
712 | (1) |
|
|
|
|
|
715 | (1) |
|
4 Sea Change, Part Two-The ABA Model Rules |
|
|
716 | (1) |
|
Lawyer-Ethics Code Undergoes Sea Change |
|
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716 | (1) |
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717 | (1) |
|
5 Can Corporate Criminal Guidelines Foster Ethical Conduct? |
|
|
717 | (1) |
|
The Organizational Sentencing Guidelines and the Employment At-Will Rule as Applied to In-House Counsel |
|
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718 | (1) |
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719 | (1) |
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719 | (1) |
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720 | (1) |
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722 | (1) |
|
7 Whither Protection for In-House Whistleblowers? |
|
|
722 | (1) |
|
Crews v. Buckman Laboratories International, Inc. |
|
|
724 | (1) |
|
|
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726 | (1) |
|
8 Whither (Wither?) the Corporate Attorney-Client Privilege? Part One-Prosecutorial Pressure |
|
|
727 | (1) |
|
Attacks on Client Privilege Increasing: Government Insistence on Waiver Jeopardizes Values of Corporate Privilege |
|
|
727 | (1) |
|
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|
|
|
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729 | (1) |
|
9 Whither (Wither?) the Corporate Attorney-Client Privilege? Part Two-Corporate Self-Destructive Behavior |
|
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730 | (2) |
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732 | (3) |
|
Problem 26 What's Most Important-What You Say, How You Say It...or Whether You Should Say It at All? |
|
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735 | (26) |
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735 | (1) |
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735 | (2) |
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737 | (20) |
|
1 How Should Lawyers Advise Their Clients? |
|
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737 | (1) |
|
The Audit Lottery: Don't Ask, Don't Tell? |
|
|
737 | (1) |
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741 | (1) |
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741 | (2) |
|
3 Knowledge and the Story of O.P.M.'s Lawyers |
|
|
743 | (3) |
|
4 Knowledge and the Duty to Investigate |
|
|
746 | (1) |
|
5 Enron: Legal Advice as Cover-Up, or Just Client Protection? |
|
|
747 | (1) |
|
A New Role for Lawyers? The Corporate Counselor After Enron |
|
|
748 | (1) |
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752 | (1) |
|
6 Lincoln Savings, Its Lawyers, Their Lawyer, and "Litigation Counsel" |
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752 | (3) |
|
7 Kaye Scholer, "Factual Assertions," and Three Bar Opinions |
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755 | (1) |
|
8 Putting the Advice into Action |
|
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755 | (2) |
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757 | (4) |
| Part Four The Pressures, Economics, And Diversity Of Modern Practice |
|
|
Chapter 10 The Lawyer as Part of the Law Firm Structure |
|
|
761 | (90) |
|
Problem 27 The Senior Associate's Serious Dilemma |
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761 | (30) |
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761 | (1) |
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761 | (2) |
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763 | (26) |
|
1 Peter Kelly Takes a Stand |
|
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763 | (1) |
|
Associate Whistle Blowing |
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764 | (1) |
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766 | (1) |
|
2 Advice from Professor Hazard |
|
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767 | (1) |
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767 | (1) |
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769 | (1) |
|
3 To Report or Not to Report? |
|
|
769 | (2) |
|
4 The Torture Memorandum-May a Lawyer Give Less Than an "Honest" Opinion?-A Case Study |
|
|
771 | (1) |
|
Ethical Issues Raised by the OLC Torture Memorandum |
|
|
771 | (1) |
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776 | (1) |
|
5 Duties to Third Parties? |
|
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777 | (3) |
|
6 Disclosure to Third Parties? |
|
|
780 | (1) |
|
7 Discipline for Law Firms? |
|
|
780 | (1) |
|
Professional Discipline for Law Firms? |
|
|
781 | (1) |
|
|
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785 | (1) |
|
8 Modern Law Firm Culture and "Greedy Associates" |
|
|
786 | (1) |
|
The Moral Compass: Associated Stress |
|
|
787 | (1) |
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789 | (2) |
|
Problem 28 Billing Practices at Prager & Dahms |
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791 | (26) |
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791 | (1) |
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791 | (2) |
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793 | (22) |
|
1 The Development of "Billable Hours" |
|
|
793 | (1) |
|
2 Clients Start Fighting Back About Overbilling |
|
|
794 | (1) |
|
3 Overbilling at the Top, Part I |
|
|
795 | (1) |
|
Overbilling Is a Big-Firm Problem Too |
|
|
796 | (1) |
|
|
|
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|
798 | (1) |
|
4 Overbilling at the Top, Part II |
|
|
798 | (1) |
|
5 The ABA Speaks Out on Billing Practices |
|
|
799 | (1) |
|
American Bar Association Formal Opinion 93-379, Billing for Professional Fees, Disbursements, and Other Expenses |
|
|
800 | (1) |
|
|
|
802 | (1) |
|
6 Happy, Healthy, and Ethical-and Still Billing? |
|
|
803 | (1) |
|
On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession |
|
|
803 | (1) |
|
|
|
|
|
809 | (1) |
|
7 "BigLaw" Rides the Rollercoaster |
|
|
809 | (1) |
|
The Changing Cultures and Economics of Large Law Firm Practice and Their Impact on Legal Education |
|
|
811 | (1) |
|
|
|
|
|
812 | (1) |
|
8 Modern Alternatives to Hourly Billing |
|
|
813 | (2) |
|
|
|
815 | (2) |
|
Problem 29 Is There a Glass Ceiling as Lawyers Climb the Law Firm Ladder? |
|
|
817 | (34) |
|
|
|
817 | (1) |
|
|
|
817 | (1) |
|
|
|
818 | (30) |
|
1 Women in the Legal Workplace |
|
|
818 | (1) |
|
Breaking Through the Glass Ceiling |
|
|
820 | (1) |
|
|
|
|
|
822 | (1) |
|
|
|
823 | (1) |
|
Female Lawyers Can Talk, Too |
|
|
823 | (1) |
|
|
|
|
|
824 | (1) |
|
3 The "Mommy Track" and Caretakers |
|
|
824 | (1) |
|
|
|
825 | (1) |
|
|
|
4 Women as "Rainmakers," and "Networking" |
|
|
827 | (1) |
|
5 Minorities and Race: The San Francisco Experience |
|
|
827 | (2) |
|
6 Are Minority Attorneys Losing Ground? |
|
|
829 | (1) |
|
Are African-American Attorneys Losing Ground? |
|
|
830 | (1) |
|
|
|
|
|
831 | (1) |
|
Falling Through the Cracks: Race and Corporate Law Firms |
|
|
831 | (1) |
|
|
|
|
|
834 | (1) |
|
7 Minority Partners and Systemic Issues |
|
|
834 | (1) |
|
Partners Without Power? A Preliminary Look at Black Partners in Corporate Law Firms |
|
|
834 | (1) |
|
|
|
|
|
838 | (1) |
|
8 Facing Dual Discrimination |
|
|
839 | (1) |
|
|
|
839 | (1) |
|
|
|
|
|
842 | (1) |
|
9 Is Bias an Ethical Issue? |
|
|
842 | (1) |
|
|
|
843 | (1) |
|
11 Making Diversity Work in the Law Firm |
|
|
844 | (1) |
|
Diversity in the Workplace |
|
|
844 | (1) |
|
|
|
|
|
847 | (1) |
|
|
|
848 | (3) |
|
Chapter 11 Mental Health, Substance Abuse, and the Realities of Modern Practice |
|
|
851 | (28) |
|
Problem 30 A Lawyer in Trouble and His Friends on the Spot |
|
|
851 | (28) |
|
|
|
851 | (1) |
|
|
|
851 | (2) |
|
|
|
853 | (23) |
|
1 Defining the Problem of Substance Use |
|
|
853 | (1) |
|
2 Recent Statistics on Lawyers and Depression |
|
|
854 | (1) |
|
|
|
854 | (1) |
|
|
|
|
|
856 | (1) |
|
3 A Case History of a Lawyer in Trouble |
|
|
856 | (1) |
|
|
|
856 | (1) |
|
|
|
|
|
859 | (1) |
|
4 Lawyers' Problems? Let Us Count the Ways |
|
|
860 | (1) |
|
5 How Forgiving Is Our Disciplinary System about Alcohol and Other Illnesses? |
|
|
861 | (2) |
|
6 Defining the Ethical Requirements, and Two ABA Opinions on Impairment |
|
|
863 | (2) |
|
|
|
865 | (1) |
|
Presenting the Hard Facts of a Liquid Habit to Impaired Lawyers |
|
|
865 | (1) |
|
|
|
|
|
869 | (1) |
|
8 Stress, Dissatisfaction, and Wellness |
|
|
869 | (1) |
|
The Inseparability of Professionalism and Personal Satisfaction: Perspectives on Values, Integrity and Happiness |
|
|
870 | (1) |
|
|
|
|
|
872 | (1) |
|
9 Stress, Drugs, and the Rock 'n' Roll of Law Practice |
|
|
872 | (1) |
|
10 Further Thoughts on the Best Cure: Prevention |
|
|
873 | (1) |
|
Practicing Law and Wellness: Modern Strategies for the Lawyer Dealing with Anxiety, Addiction and Depression |
|
|
873 | (1) |
|
|
|
|
|
|
|
875 | (1) |
|
|
|
876 | (3) |
|
Chapter 12 The Economics of Lawyering |
|
|
879 | (54) |
|
Problem 31 Counselors in Action Go for the Gold |
|
|
879 | (26) |
|
|
|
879 | (1) |
|
|
|
879 | (2) |
|
|
|
881 | (22) |
|
|
|
881 | (1) |
|
Bates v. State Bar of Arizona |
|
|
881 | (1) |
|
|
|
885 | (1) |
|
2 The Progeny of Bates: Advertising Cases in the Supreme Court |
|
|
885 | (2) |
|
3 How Much Has Changed? It Mostly Comes Down to "Misleading" |
|
|
887 | (1) |
|
Hunter v. Virginia State Bar ex rel. Third Dist. Comm. |
|
|
890 | (1) |
|
|
|
895 | (1) |
|
4 So What Is "Misleading" in Today's World? |
|
|
895 | (2) |
|
5 Bates's Supreme Court Progeny: Solicitation |
|
|
897 | (3) |
|
6 Solicitation After Shapero and Went For It |
|
|
900 | (2) |
|
7 Insurance Companies, Insurance Lawyers, and Advertising |
|
|
902 | (1) |
|
|
|
903 | (2) |
|
Problem 32 The Economics of Legal Services for Indigent Clients |
|
|
905 | |
|
|
|
905 | (1) |
|
|
|
905 | (1) |
|
|
|
906 | (21) |
|
1 Life as a Legal Aid Lawyer |
|
|
906 | (1) |
|
|
|
907 | (1) |
|
|
|
|
|
910 | (1) |
|
2 Making Choices about Which Cases to Take |
|
|
910 | (1) |
|
Veto Will Affect Legal Assistance for State's |
|
|
910 | (1) |
|
|
|
|
|
911 | (1) |
|
|
|
912 | (1) |
|
4 IOLTA, and How It's Not Nearly Enough |
|
|
913 | (1) |
|
Brown v. Legal Foundation of Washington |
|
|
913 | (1) |
|
|
|
914 | (1) |
|
5 Sunshine on a Bleak Landscape? |
|
|
914 | (1) |
|
6 The (Unfulfilled?) Promise of Gideon |
|
|
915 | (1) |
|
7 Walking the Walk: Accomplishing Pro Bono Work |
|
|
916 | (1) |
|
Needlework and Soap Operas on Death Row |
|
|
918 | (1) |
|
|
|
|
|
920 | (1) |
|
8 A Call for Mandatory Pro Bono |
|
|
921 | (1) |
|
9 Should-and Can-Mandatory Pro Bono Be Legislated? |
|
|
922 | (2) |
|
10 Pro Bono from All Lawyers, Starting at the Top |
|
|
924 | (1) |
|
Professionalism Revisited |
|
|
924 | (1) |
|
|
|
|
|
926 | (1) |
|
11 How About Our Law Schools? |
|
|
926 | (1) |
|
|
|
927 | (6) |
| Part Five Other Attorney Conduct Issues |
|
|
Chapter 13 Admissions, Discipline, and Some Other Rules of Lawyering |
|
|
933 | (36) |
|
|
|
934 | (19) |
|
1 Educational Requirements and the Bar Exam |
|
|
936 | (3) |
|
2 What Should Race and Gender Have to Do with Law School Admission? |
|
|
939 | (1) |
|
The Broader Case for Affirmative Action, Desegregation, Academic Excellence, and Future Leadership |
|
|
940 | (1) |
|
|
|
|
|
941 | (1) |
|
3 Comparing Educational Processes: The Making of a Lawyer in America, Europe, and Asia |
|
|
941 | (2) |
|
4 In Search of a Uniform Definition of Good Moral Character |
|
|
943 | (3) |
|
5 Other "Character" Grounds for Denying Admission |
|
|
946 | (4) |
|
6 Some Problems of Multiple Jurisdictions |
|
|
950 | (3) |
|
|
|
953 | (6) |
|
1 An Overview of Lawyer Discipline |
|
|
953 | (4) |
|
|
|
957 | (1) |
|
3 Should Lawyers Discipline Lawyers? |
|
|
957 | (1) |
|
4 Civil and Other Remedies |
|
|
958 | (1) |
|
C The Unauthorized Practice of Law and Multidisciplinary Practice |
|
|
959 | (7) |
|
1 A Brief Overview of Unauthorized Practice |
|
|
959 | (1) |
|
2 What Is Meant by "The Practice of Law"? |
|
|
960 | (1) |
|
3 Defining What Non-Lawyers May Do |
|
|
961 | (2) |
|
4 Multidisciplinary Practice (MDP): Non-Lawyer Practice on a Large Scale |
|
|
963 | (1) |
|
5 The Swing of the Pendulum |
|
|
964 | (2) |
|
|
|
966 | (3) |
| Index |
|
969 | |
