Reasoned Decision-Making for Ethics Regulation

Many lawyers and scholars have criticized the ethics rules developed by the organized legal profession to regulate the practice of law. Complaints about processes for generating new ethics rules and ethics opinions interpreting ethics rules commonly reflect concerns about failures to engage in reasoned decision-making. Rationales for the proposed rules or the opinions proffered by bar associations, courts, or agencies are often incomplete or inadequately supported, and one must imagine that the quality of resulting rules or their interpretations often suffers. We argue that administrative law provides a model for how courts can address such concerns—a model that courts, both federal and state, already follow in demanding and encouraging reasoned decision-making by administrative agencies. This Article examines two principal administrative law approaches that courts should adopt. First, even in areas where courts are manifestly inexpert relative to administrative agencies, they have insisted on giving agency rules a “hard look” for confirmation that the agency properly justified the rules at the time of issuance, that the agency issued the rules through a process that gave interested parties a meaningful opportunity to comment and make suggestions, and that the agency properly considered such inputs as well as the whole of the evidence before it. Second, courts have often accorded weight to agency opinions on questions such as statutory interpretation, with the weight accorded dependent on the nature of the agency’s process in generating such an interpretation. In the ethics context, courts can act similarly to promote reasoned decision-making by (1) giving an analog of “hard look” review to rules proffered by bar associations before adopting them and (2) giving bar associations’ ethics opinions only a degree of weight that they merit through high quality process and on-therecord reasoning. By adopting these two approaches to considering the adoption and interpretation of ethics rules, courts can help bring about significant improvements to processes for drafting, adopting, and interpreting ethics rules

Integrating Theory and Practice Into the Professional Responsibility Curriculum at the University of Texas

Teaching ethics to large classes has always proved to be a great challenge for those who teach professional responsibility at the University of Texas. A new program at the University of Texas to improve the professional responsibility curriculum is discussed

Law Student Admissions and Ethics - Rethinking Character and Fitness Inquiries

This article expands on the use and recommended methods of including criminal background inquiries on law school applications. Part I of this article begins with an introduction to the ethics issues arising in connection with the admission of law students. Part II focuses on different purposes served by criminal background questions on the law school admission application, including screening applicants’ fitness to practice law. Part III considers the various ways law schools handle applicants’ nondisclosure and expands on the benefits of a modified amnesty program. Part IV explores how criminal background inquiries differ in depth, spanning from questions asking about criminal convictions to questions covering criminal charges, and how these inquiries may reflect a socio-economic bias. Part V details the advantages lawyers can provide applicants regarding disclosure. The article concludes by recommending measures law schools can take to effectively employ criminal background inquiries while simultaneously limiting any socio-economic bias

Law Student Admissions and Ethics - Rethinking Character and Fitness Inquiries

This article expands on the use and recommended methods of including criminal background inquiries on law school applications. Part I of this article begins with an introduction to the ethics issues arising in connection with the admission of law students. Part II focuses on different purposes served by criminal background questions on the law school admission application, including screening applicants’ fitness to practice law. Part III considers the various ways law schools handle applicants’ nondisclosure and expands on the benefits of a modified amnesty program. Part IV explores how criminal background inquiries differ in depth, spanning from questions asking about criminal convictions to questions covering criminal charges, and how these inquiries may reflect a socio-economic bias. Part V details the advantages lawyers can provide applicants regarding disclosure. The article concludes by recommending measures law schools can take to effectively employ criminal background inquiries while simultaneously limiting any socio-economic bias

Legal Doubletalk and the Concern with Positional Conflicts: A “Foolish Consistency”?

This article explores the question whether lawyers should be able to argue both sides of a legal issue is unrelated cases. Today the ABA and many state bar associations caution against so-called “positional conflicts,” analyzing them as potential conflicts of interest under a multi-factor test. This relatively recent concern misses the real potential for harm: it is precisely when a lawyer decides not to make a contradictory argument for one client in order not to offend or harm another client that an ethical problem is likely to be present. A positional conflict is therefore evidence that any pressure to modify arguments has been overcome. In fact, a rule against positional conflicts only increases lawyers’ incentives to modify or drop arguments for the less-favored client. Thus, there should be no ethical prohibition against positional conflicts. On the other hand, a positional conflict may create credibility problems, despite the widely held professional ideals of independence and detachment. The positional conflict debate exposes fundamental ambivalence about lawyer sincerity, loyalty and independence. Eliminating a rule against positional conflicts will to some extent mitigate those credibility problems, but not entirely