Legal Ethics

La natura della deontologia forense

by Mario Ricciardi

published in “Rassegna Forense”, XXXIX (2006), pp. 1405-1429.

‘Zealous Advocates: The Historical Foundations of the Adversarial Criminal Defence Lawyer’

by Thomas Smith

Published in Law, Crime and History (2012) Volume 2, Issue 1

The place of the criminal defence lawyer in the modern criminal justice system is a given; every suspect and defendant... more The place of the criminal defence lawyer in the modern criminal justice system is a given; every suspect and defendant expects full representation as a right. However, the defence lawyer appeared surprisingly late in the long and venerable history of the English and Welsh legal system. Notwithstanding the defence lawyer‟s role as advocate for the accused, this unique professional role involves a variety of duties and obligations. This article will focus on the historical development of these core principles of criminal defence as well as the expansion of the role in the general context of adversarialism.

More Seminal Ethics Implications

by Mark Singer

Tandem works include: "Seminal Ethics," "Kant Concept Art," "Addendum - More Seminal Ethics Implications" - also on this site.

These implications are: moral, epistemology, love, happiness, time and space, psychological, art, education, medical, economic, war, capital punishment, and abortion.

"Addendum - More Seminal Ethics Implications" includes additional categories.

Attorney-Client Privilege In the Public Sector: A Survey of Government Attorneys

by Nancy Leong

20 Georgetown Journal of Legal Ethics 163 (2007)

Courts have divided over whether the attorney-client privilege operates as it does for private individuals as it does... more Courts have divided over whether the attorney-client privilege operates as it does for private individuals as it does when the client is a government entity. The traditional instrumental rationale for the privilege - i.e., that the privilege is necessary to facilitate full disclosure of information from the client to the attorney - has been called into question by empirical research even in the context of the relationship between private individuals and their attorneys. When the client is an entity, such as a corporation, the instrumental need for this incentive is even more questionable. And when the client is not only an entity, but also a government body, bestowing a privilege upon that entity seems particularly perverse: the privilege could then be used to withhold information from the very citizens that the entity exists to represent.

To bolster the argument against an absolute privilege in the context of government entity clients, my article summarizes the results of thirty detailed interviews I conducted with attorneys who represent government entities. Twenty-five attorneys represented state government entities; five represented municipalities. In the aggregate, the attorneys I spoke with suggested that they did not view their role as analogous to the role of an attorney in the private sector and indicated that they gave substantial weight to the public interests at stake in the representation. This was the case regardless whether the ethical rules in the attorney's state mandated an absolute privilege for government entities or indicated that some qualification to the privilege was appropriate. The article concludes, therefore, that a qualified rather than an absolute privilege is appropriate in the context of representation of a government entity client.

Similarities in business and IT professional ethics: The need for and development of a comprehensive code of ethics

by Brett Landry

Technical perspectives of illegal P2P file sharing: available technical solutions

by Brett Landry

P2P file sharing and the law: a brief survey of legislation and jurisprudence

by Brett Landry

Kant Concept Art

by Mark Singer

Tandem works include: "Seminal Ethics," "More Seminal Ethics Implications," "Addendum - More Seminal Ethics Implications" - also on this site.

The artist is P. Patten (USA).

Seminal Ethics

by Mark Singer

Tandem works include: "Kant Concept Art," "More Seminal Ethics Implications," "Addendum - More Seminal Ethics Implications" - also on this site.

Additional implications include: moral, epistemology, love, happiness, time and space, psychological, art, education, medical, economic, war, capital punishment, abortion, and possibility.

On Liberal Neutrality, the Value of Experience and the Loneliness of the Long-Distance Academic

by Julian Webb

Co-authored with Roger Burridge. Final version published in (2008) 42(3) Law Teacher 339-54 (a special issue dedicated to discussion of our earlier paper 'The Values of Common Law Legal Education'

This paper is a response to five comments (by Wes Pue, Tony Bradney, Fiona Cownie, Clark Cunningham and Adrian Evans)... more This paper is a response to five comments (by Wes Pue, Tony Bradney, Fiona Cownie, Clark Cunningham and Adrian Evans) on an earlier paper published by Burridge and Webb as 'The Values of Common Law Legal Education' in (2007) 10 Legal Ethics 72. In our response we identify some essential common ground that we share with our commentators before exploring a number of criticisms made of our original paper. In this process we defend our core idea of a 'post-liberal' legal education that rests the mission of legal education on a restricted principle of liberal neutrality. We accordingly argue that it is necessary for (post-)liberal teachers and educational institutions to take values positions that are consistent with their liberal ideals, subject to a commitment to be open about what those positions are, and a willingness to engage in values debate. We also set out to clarify aspects of our position on the value of autonomy, on the implicit elitism of liberal education, on clinic and the role of experiential learning, and on the issues of law school governance and values selection.

The Ethical Health Lawyer: An Empirical Assessment of Moral Decision Making

by Ellen Clayton

Joshua Perry is first author.

Writing in 1999, legal ethics scholar Brad Wendel noted that "[v]ery little empirical work has been done on the... more Writing in 1999, legal ethics scholar Brad Wendel noted that "[v]ery little empirical work has been done on the moral decision making of lawyers." Indeed, since the mid-1990s, few empirical studies have attempted to explore how attorneys deliberate about ethical dilemmas they encounter in their practice. Moreover, while past research has explored some of the ethical issues confronting lawyers practicing in certain specific areas of practice, no published data exists probing the moral mind of health care lawyers. As signaled by the creation of a regular column "devoted to ethical issues arising in the practice of health law" in the Journal of Law, Medicine & Ethics, the time to address the empirical gap in the professional ethics literature is now. Accordingly, this article presents data collected from 120 health care lawyers. Presenting this population with a number of hypothetical scenarios relating to how they would respond when confronting an ethical dilemma without an obvious solution or when facing a situation in which their personal values were in tension with their professional obligations, this article represents a first step toward better understanding how lawyers who practice in health care settings understand and resolve the moral discomfort they encounter in their professional lives.

Except for Titled Properties, Boracay is owned by the State

by Historically Digitized

Benchmark Online October 2008


SC: Except for Titled Portions, State Owns Boracay
By Jay B.... more Benchmark Online October 2008


SC: Except for Titled Portions, State Owns Boracay
By Jay B. Rempillo

Boracay is owned by the State except for the lot areas with existing titles. Thus ruled by the Supreme Court as it resolved the consolidated petitions involving the ownership of the world-famous tourist spot renowned for its powdery beaches and stellar resorts.

In a 35-page unanimous decision penned by Justice Ruben T. Reyes, the Court, granting the petition in GR No. 167707, reversed and set aside the decision of the Court of Appeals (CA). The Court also dismissed for lack of merit the petition in GR No. 173775. GR No. 167707 is a petition questioning the CA decision that affirmed that of the Kalibo, Aklan Regional Trial Court granting the petition for declaratory relief filed by respondents-claimants Mayor Jose Yap, et al. and ordering the survey of Boracay for titling purposes. On the other hand, GR No. 173775 is a petition for prohibition, mandamus, and nullification of Proclamation No. 1064 issued by President Gloria Macapagal-Arroyo in 2006 classifying Boracay into reserved forest and agricultural land.

“The continued possession and considerable investment of private claimants do not automatically give them a vested right in Boracay. Nor do these give them a right to apply for a title to the land they are presently occupying. This Court is constitutionally bound to decide cases based on the evidence presented and the laws applicable. As the law and jurisprudence stand, private claimants are ineligible to apply for a judicial confirmation of title over their occupied portions in Boracay even with their continued possession and considerable investment in the land.”

The Court, however, said that while private claimants are ineligible for ownership, such does not mean their automatic ouster from the residential, commercial, and other areas they posses now classified as agricultural. Neither will this mean the loss of their substantial investments on their occupied alienable lands. Lack of title does not necessarily mean lack of right to possess, it ruled.

The Court explained that those with lawful possession may claim good faith as builders of improvements and may look into other modes of applying for original registration of title, such as by homestead or sales patent, subject to the conditions imposed by law. “More realistically, Congress may enact a law to entitle private claimants to acquire title to their occupied lots or to exempt them from certain requirements under the present land laws,” the Court said.

The Court noted that the Regalian Doctrine states that all lands of the public domain belong to the State, making the State the source of any asserted right to ownership and charged with the conservation of such patrimony. Our present land law traces its roots to the Regalian Doctrine.

The Court also upheld the validity of Proc. 1064. It stressed that it was Proc. 1064 which positively declared part of Boracay as alienable and opened the same to private ownership. It further stressed that President Macapagal-Arroyo, in issuing such, merely exercised the authority granted to her to classify lands of the public domain, presumably subject to existing vested rights.

Proc. 1064 classified Boracay into 400 hectares of reserved forest land and 628.96 hectares of agricultural land. The same also provides for a 15-meter buffer zone on each side of the center line of roads and trails, which are reserved for right of way and which shall form part of the area reserved for forest land protection purposes. The Court also held that Proc. 1064 does not violate the Comprehensive Agrarian Reform Law.

Except for lands already covered by existing titles, the Court said that Boracay was unclassified land of the public domain prior to Proc 1064. Such unclassified lands are considered public forest under PD No. 705.

The Court noted that the classification of Boracay as forest land under PD 705 may seem to be out of touch with the present realities in the island, considering that it has been partly stripped of its forest cover to pave the way for commercial developments. It, however, explained that forests do not necessarily refer to large tracts of wooded land or expanses covered by dense growths of trees and underbrushes.

The assailed RTC decision also held that Proc. No. 1801 and PTA Circular 3-82 pose no legal obstacle to petitioners to acquire title to land in Boracay. Proc. 1801, issued by President Ferdinand E. Marcos in 1978, declared Boracay, among other islands, as tourist zones and marine reserves under the Philippine Tourism Authority, while the PTA Circular was issued to implement Proc. 1801.

The Court held that Proc. 1801 or the PTA Circular did not convert the whole of Boracay into agricultural land. The said issuance covers not only Boracay but 64 other islands, coves, and peninsulas in the Philippines such as Port Galera in Oriental Mindoro, Coron Island, Puerto Princesa in Palawan, and the Camiguin island in Cagayan de Oro, it noted.

That Boracay was classified as a public forest under PD 705 did not bar the Executive from later converting it into agricultural land. Boracay still remained an unclassified land of the public domain despite PD 705, the Court said.

The Court also ruled that private claimants are not entitled to apply for judicial confirmation of imperfect title under CA No. 141 and that neither do they have vested rights over the occupied lands under the said law. The private claimants’ bid for judicial confirmation of imperfect title must fail because of the absence of the second element of alienable and disposable land, it said. “Neither may private claimants apply for judicial confirmation of imperfect title under Proclamation No. 1064, with respect to those lands which were classified as agricultural lands. Private claimants failed to prove the first element of open, continuous, exclusive, and notorious possession of their lands in Boracay since June 12, 1945,” the Court said. (GR No. 167707, The Secretary of the Department of Environment and Natural Resources v. Yap; GR No. 173775, Sacay v. The Secretary of the Department of Environment and Natural Resources, October 8, 2008)

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The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct

by David Keenan

Yale Law Journal Online. Co-authored with Deborah Jane Cooper, David Lebowitz & Tamar Lerer

This Essay takes the Supreme Court’s recent decision in Connick v. Thompson as a point of departure for examining the... more This Essay takes the Supreme Court’s recent decision in Connick v. Thompson as a point of departure for examining the efficacy of professional responsibility measures in combating prosecutorial misconduct. John Thompson, the plaintiff in Connick, spent fourteen years on death row because prosecutors concealed exculpatory blood evidence from his defense attorneys. In rejecting Thompson’s attempt to hold the New Orleans District Attorney’s Office civilly liable for failing to train its prosecutors in proper discovery procedures, the Connick Court substantially narrowed one of the few remaining avenues for deterring prosecutorial misconduct. Implicit in the Court’s reasoning was a belief that district attorneys' offices should be entitled to reasonably rely on professional responsibility measures to prevent prosecutorial misconduct. This Essay subjects that premise to a searching critique by surveying all fifty states’ lawyer disciplinary practices. Our study demonstrates that professional responsibility measures as they are currently composed do a poor job of policing prosecutorial misconduct. However, we also take seriously the Supreme Court’s insistence that those measures should function as the primary means of deterring misconduct. Accordingly, in addition to noting the deficiencies of professional responsibility measures, we offer a series of recommendations for enhancing their effectiveness.

A Sense of Justice: the Role of Pre-Sentence Reports in the Production and Disruption of Guilt and Guilty Pleas

by Cyrus Tata

Punishment & Society: the International Journal of Penology Vol. 12(3)

" Swings and Roundabouts": Do Changes to the Structure of Legal Aid Remuneration Make a Real Difference to Criminal Case Management and Case …

by Cyrus Tata

“Swings and Roundabouts”: Do Changes to the Structure of Legal Aid Make a Real Difference to Criminal Case Outcomes?

by Cyrus Tata

In the interests of clients or commerce? Legal aid, supply, demand, and 'ethical indeterminacy'in criminal defence work

by Cyrus Tata

Journal of Law & Society Vol 34(4) : 489-519

The impact of ethical and legal IT decision making on society

by Dan Calloway

Serving the DIY Client: A Guide to Unbundling Legal Services

by Stephanie Kimbro

We live in a do-it-yourself (DIY) society. Consumers are comfortable going online to handle business and professional... more We live in a do-it-yourself (DIY) society. Consumers are comfortable going online to handle business and professional transactions. They shop, conduct banking and investing, earn degrees and communicate with family and friends over the Internet. The public has gotten used to controlling online interactions and many individuals see the benefit and convenience of handling business on their own time.

The DIY consumer also understands that when a product or service has a DIY component, it tends to be more affordable. This is seen as an acceptable tradeoff for doing a little or a lot of the footwork. In the current economy, many lower to moderate income individuals are more than willing to do the extra work to save money on their legal needs.....

There are benefits for the professional as well as the public in unbundling legal services. Unbundling may be seen primarily as a service to be handled pro bono or “low” bono. However, private practitioners may also provide limited scope representation to serve another segment of the population in need of basic legal services while making it cost-effective for their firm. Adding unbundled legal services to a traditional law firm structure can be used to market a law practice to an entirely new client base and give the firm a competitive advantage....

This ebook will refer to these resources while focusing on providing a basic, easy-to-digest introduction to unbundling for private practice lawyers. The ebook will cover ethics concerns and best practices for unbundling and provide practical suggestions for implementation. This ebook will not go into ethics issues involved in an attorney’s participation in court-sponsored legal services programs. Instead, it will focus on solos and small firm’s potential to provide limited scope services. As a side goal, this ebook will hopefully start a renewed dialogue between the private and public sectors of the legal profession about using unbundling as an alternative solution for chipping away at the nation’s access to justice deficiencies.

Online Responsibility: Bad Samaritanism and the Influence of Internet Mediation

by Saskia Polder-Verkiel

http://www.springerlink.com/content/v784v023h7472503/
Keywords Responsibility - Internet mediation - Bad Samaritanism - Kitty Genovese - Abraham Biggs - Bystander effect - Physical distance - Anonymity - Ability to act - Perceived reality - Moral philosophy - Intuitions

In 2008 a young man committed suicide while his webcam was running. 1,500 people apparently watched as the young man... more In 2008 a young man committed suicide while his webcam was running. 1,500 people apparently watched as the young man lay dying: when people finally made an effort to call the police, it was too late. This closely resembles the case of Kitty Genovese in 1964, where 39 neighbours supposedly watched an attacker assault and did not call until it was too late. This paper examines the role of internet mediation in cases where people may or may not have been good Samaritans and what their responsibilities were. The method is an intuitive one: intuitions on the various potentially morally relevant differences when it comes to responsibility between offline and online situations are examined. The number of onlookers, their physical nearness and their anonymity have no moral relevance when it comes to holding them responsible. Their perceived reality of the situation and ability to act do have an effect on whether we can hold people responsible, but this doesn’t seem to be unique to internet mediation. However the way in which those factors are intrinsically connected to internet mediation does seem to have a diminishing effect on responsibility in online situations.