Recent Law Review Articles Concerning the Legal Profession

Transcription

1 Recent Law Review Articles Concerning the Legal Profession Because this is the first publication of what will be a continuing feature, the articles noted herein are not restricted to the past year. However, most of the articles are from those published in the years 1978 through Future issues will spotlight only articles from the year before publication. 1. Notes and Comments, Outside the Courtroom: Conflicts of Interests in Nonlitigious Situations, 37 Washington & Lee Law Review 161 (1980). This article presents an overview of the current state of conflict of interest law with emphasis upon the Chinese wall defense, consequences of adopting a rebuttable or irrebuttable presumption that confidences have been revealed, and analysis of the different tests of adversariness. The substantial relationship test is also examined, with a criticism that it is inadequate in a non-trial setting. The author posits that there has not been much recognition that peculiar problems arise in non-litigious situations, thereby making traditional conflicts of interest analyses insufficient. Among other difficulties discussed is the fact that in a trial setting one party may file a motion to disqualify if it feels there may be a conflict; the court then decides the issue. Outside the courtroom, however, there is no impartial third party to resolve such problems. The author notes that the attorney's good faith decision might not be enough to protect his client from the unconscious use of information gained from other sources. Various remedies open to the former client who fears that a conflict of interest has arisen are also discussed. 2. Mickenberg, The Silent Clients: Legal and Ethical Considerations in Representing Severely and Profoundly Retarded Individuals, 31 Stanford Law Review 625 (1979). Mr. Mickenberg's article is premised upon the fact that the severely or profoundly retarded client is unable to communicate effectively with his attorney, to state his objections to the situation in which he finds himself, or to express his desire that his case be resolved into a particular outcome. Against this background, the author discusses problems and offers guidance on the following situations: those instances when

2 400 The Journal of the Legal Profession the attorney must make decisions normally entrusted to the client; when the interests of a third party guardian, such as a parent, are in potential conflict with those of the client; and differences of opinion between a guardian ad litem and the attorney. The author comments that his purpose is more to identify possible problem areas, rather than provide concrete answers to their solution. 3. Guidelines for Defense Counsel in Commitment Cases, 56 Michigan State Bar Journal 1003 (1977). This comment discusses zealous representation and the use of independent professional judgment when defense counsel is involved in a commitment case. Some of the same problems that were rooted in The Silent Clients, supra, are noted, in addition to some revealing comments regarding outside pressures to "help" the respondent through institutionalization. The author gives specific advice concerning alternatives to institutionalization, tasks to be performed in order to competently represent the client, and steps to be taken by the attorney in commitment cases. A bibliography is appended as an aid to the attorney who represents the mentally ill and the mentally handicapped. 4. Nebeker, The Judge Needs a Lawyer, 9 Catholic University Law Review 751 (1980). What happens when the judge finds himself not as a dispute resolver, but as a defendant in a lawsuit because of his courtroom activities? Frank Nebeker reviews the doctrine of judicial immunity and its erosion through 1983 suits, the new constitutional tort action, and the appearance of judicial disciplinary commissions. Even though judges are guaranteed a right to counsel, they often cannot afford independent help and are forced to appear pro se or to rely upon state-appointed counsel, usually from the attorney general's office. The latter situation is investigated in more detail, with emphasis upon the tremendous workload of the attorney general's office, the appearance of impropriety when a government attorney frequently appears before a judge he previously defended, and possible conflicts of interest in being represented by an attorney whose first duty is to the public, not the judge. Mr. Nebeker closes his discussion with a recommendation for a publicly financed judicial defender. 5. Gonser, Almond, and Zeigler, Financing Public Service Actiuities with Interest-Bearing Attorney Trust Accounts, 15 Idaho Law Review 219 (1978). The authors investigate a plan to permit attorneys to move funds from non-interest bearing checking accounts to

3 Law Review Articles 401 interest bearing accounts. The banking institution would then pay the interest to a law foundation which would in turn disburse those funds for certain limited purposes for the benefit of the public as a whole, and not just the legal profession. Such plans are already in operation in Florida and British Columbia, and these models are discussed. The article examines possible tax consequences regarding anticipatory assignment of income and retention of tax exempt status by the law foundation. The authors predict opposition from the banking community and indifference from the legal profession. They outline possible solutions for the above difficulties and make suggestions for the distribution of the funds collected by the law foundation. 6. The Unionization of Law Firms, 46 Fordham Law Review 1008 (1978). The Unionization of Law Firms examines legal problems attendant upon an assertion of jurisdiction over law firms by the NLRB. Topics of discussion include the demise of the learned profession exemption and the creation of appropriate bargaining units among associate attorneys, paralegals, and administrative and support employees. The author is especially concerned with confidentiality problems which could arise when law firm employees are represented by organizations which might have interests contrary to those of the law firm's clients. The article also examines internal pressures against unionization, especially by those groups considering themselves professionals and thus regarding unionization as inappropriate. 7. Stephenson, The Social Contract of a Self Governing Profession, 14 The Law Society of Upper Canada Gazette 255 (1980). Dr. Stephenson outlines the historical reasons for the emergence of law as a self governing profession. She compares the law and the public to that relationship envisioned by Jean Jacques Rousseau as existing between the government and the public-a social contract. The author submits that the public has given up the right to judge the day to day conduct of the attorney, who has in turn assumed a primary responsibility for public service. There is currently a questioning of this social contract, however, which she posits has resulted from a misunderstanding by the lay citizenry of the functions of a profession. Dr. Stephenson offers several suggestions on how to maintain self-governance, the chief of these being an exhortation that the profession not only recognize and discharge its re-

4 402 The Journal of the Legal Profession sponsibilities, but that it do so in a more visible manner. 8. Waltz, The Unpopularity of Lawyers in America, 25 Cleveland State Law Review 143 (1976). Mr. Waltz presents a portrait of the modern American lawyer and comments on why he is currently in so much public disfavor. It is his opinion that many of the same factors which attract so many people to the law also antagonize large segments of the populace. The most important of these is the power an attorney has over the lives of other people, merely by virtue of his understanding of the law. The author criticizes the cultivation of the superman myth-the attorney who can solve any problem and who conducts his affairs in an idiom unintelligible to lay persons-and the tendency that makes only the worst lawyers inclined to be always in the public eye. In this latter respect, Mr. Waltz would appear to agree with Dr. Stephenson that the good attorneys among us need to come out of the shadows and be more visible to our critics. 9. Comment, Access to the Work Product of a Disqualified Attorney, 1980 Wisconsin Law Review 105 (1980). This comment explores whether the written work product of counsel who is disqualified because of conflict of interests may be made available to successor counsel. The author includes a review of disqualification under Canons 4 and 9 and analyzes a Seventh Circuit case which disapproved an automatic denial of access to the work product of a disqualified attorney. He also presents possible consequences of the decision. Symposia 1. The Legal Profession in the 1980's, 11 UNIVERSITY OF Toledo Law Review 191 (1980). Articles include: Will Electronic Technology Take the Witness Stand?, The Honorable James L. McCrystal and Ann B. Maschari; Automated Litigation Support Systems for Evidentiary Management, James D. Prendergast and Nancy Whittington; Law Office Economics in the 1980's: Bigger-and Better?, Ward Bower; and The Devitt Report in Context: Public Responsibility of Lawyers in the 1980's, Robert W. Meserve, Francis C. Lynch, and Lois Daniel. 2. Judicial Discipline and Disability Symposium, 54 Chicago-Kent Law Review 1 (1977). Topics include: The Inherent Power of a State's Highest Court to Discipline the Judiciary, James Duke

5 Law Review Articles 403 Cameron; Procedures for Judicial Discipline: Type of Commission, Due Process and Right to Counsel, Florence R. Peskoe; and Burden of Proof, Sanctions and Confidentiality, John J. Todd and M. L. Proctor. 3. Symposium on Professional Responsibility, 6 Hofstra Law Review 619 (1978). A sampling of articles include: The Perry Mason Perspective and Others: A Critique of Reductionist Thinking About the Ethics of Untruthful Practices by Lawyers for "Innocent" Defendants, Carl M. Selinger; Certification of Trial Lawyers-The Judicious Structuring of the American Legal Profession, Harry Cohen; and Ethics, Federal Prosecutors and Federal Courts: Some Recent Problems, Lee A. Adlerstein. 4. Symposium: Legal Malpractice, 30 South Carolina Law Review 201 (1979). Articles include: Recognizing and Defining Legal Malpractice, Ronald E. Mallen; Preventing Errors in Securities Transactions, Jeffrey M. Smith; and The Burdened Privilege: Defending Lawyers in Disciplinary Proceedings, Jack S. Nordby.