The Attorney\u27s Role in the Private Organization

What should be the ethical posture of the professional in the modern organization? This essay explores the plausibility of one tentative answer for one class of professionals—the attorneys. It is put forward to shock the law profession with its extremism, and then to temper the blow with its possibility. It is meant to generate discussion, and the search for solutions to the problems described; it is not offered as necessarily the best solution. It is furthermore hoped that the paper will stimulate professional groups other than attorneys. I. The Dilemma II. One Tentative Answer III. Tenure IV. Implementation V. Plausibility VI. Summar

David Hoffman\u27s Essay on Professional Deportment and the Current Legal Ethics Debate

Is the attorney primarily an advocate or an officer of the court? Commentators attacked the discussion draft of the Model Rules of Professional Conduct for emphasizing the latter and for abandoning the adversarial system. They claimed that the draft was revolutionary in departing from traditional ways. This Commentary has suggested that there has been no departure, for David Hoffman, in 1836, also believed that an attorney was, more an officer of the court than an advocate. Should proper attorney conduct be mandated by rules or should ethics be essentially a matter of personal and professional conscience? The drafts of the Model Rules answer that proper conduct can, and should, be guided only by rules. This is new, and a departure from traditional methods. The 1908 ABA Canons and the ABA Code do not rely on rules only. Hoffman\u27s resolutions were not legally enforceable duties. This Commentary has offered an historical perspective on the current legal ethics debate. It has shown that in spite of claims to the contrary, the discussion draft of the Model Rules is traditional in substance while both the discussion draft and the proposed final draft are new in format. Such a showing, however, will not determine what is the best code or the best format for today. Proper legal ethics change as social needs and assumptions change. The legal profession is coming to grips with this fact

To Provide a Common Conceptual and Linguistic Vocabulary in Order to Foster Ethics Dialogue and Education: The Nebraska Supreme Court Should Adopt the Revised \u3ci\u3eModel Rules\u3c/i\u3e—The Bright Line Rule Example

Thirty years ago, the Nebraska Supreme Court adopted the American Bar Association\u27s 1969 Model Code of Professional Responsibility. In 1983 the ABA recommended that states abandon its old Model Code and adopt its new Model Rules of Professional Conduct. In 2002 the ABA revised the 1983 version of the Model Rules, and it now recommends states adopt these revisions to the Model Rules. The most important reason Nebraska should adopt the revised Model Rules is they provide a conceptual and linguistic vocabulary for ethics dialogue and education. However, if the same words are used in different ways, conversation will be confused and impeded rather than facilitated. Here, I discuss one example of a case in which the Nebraska Supreme Court adopted the Model Rules\u27 common vocabulary but interpreted its language in an uncommon way. The court ventured on its own to adopt a bright line rule to resolve conflicts that arise when a lawyer or student law clerk leaves one firm to work on her own or with another firm. The Nebraska Supreme Court did not follow the prudent course of adopting the relevant Model Rule in its entirety. It first articulated a bright line rule in a judicial opinion. It then reiterated the rule in Disciplinary Rule 5-108(B), using the common vocabulary of the Model Rules of Professional Conduct. It then interpreted the common language in its own way. Why was the common language used? Why the different interpretation? What was the court trying to do? What policy was it trying to advance? Were its goals similar to the ABA\u27s goals? None of this is clear

Comment: A Departed Partner\u27s Liability for the Post-Departure Malpractice of Her Ex-Colleagues—A Practical Approach

Lawyers usually practice in law partnerships, and regularly, and with increasing frequency, join and depart these law firms. Commentators have only recently begun to examine the law governing the departure of partners from law firms. The purpose of this Comment is to examine one small aspect of the law governing this mobility: the post-departure liability of departed lawyers for malpractice committed by the remaining, servicing (to the client), ex-partners. The discussion will demonstrate how a too rigorous application of partnership law to the law firm situation leads to bad law. The Comment suggests that the client-law firm retainer agreement, which of course commits the firm to provide each of its clients appropriate legal services, also presumptively authorizes the law firm to manage its personnel for all its clients\u27 best interests. The Comment further suggests that any understanding among the departed lawyer and her ex-colleagues with respect to the firm and all its clients\u27 best interests should normally result in the departed lawyer\u27s discharge from liability for her ex-colleagues\u27 post-departure malpractice. This should protect all interests without placing excessive and unnecessary burdens on large law firms. Part II briefly illustrates the problem. Part III discusses important precedent establishing that the departed lawyer remains liable for the post-departure malpractice of her ex-colleagues. Part IV demonstrates how this result, which is a surprise to many commentators, is poor policy (section A), unfair to the departed lawyer (section B), and inconsistent with client expectations (section C). Part V builds on Professor Hillman\u27s recommended solution to satisfy all interests. Part VI briefly summarizes

The Nebraska Supreme Court, the Practice of Law, and the Regulation of Attorneys

The analytic thesis of this article is that the functional analysis suggested in State v. Turner, in which the court insisted on its authority to establish more than the minimum bar admission standards established by the legislature, is the correct way to frame the separation of powers issue—that is, whether the legislature or the judiciary has the ultimate authority to regulate the legal profession. Part I of this article demonstrates that, as a historical matter, Nebraska jurisprudence, until 1936, understood the judiciary\u27s power over the legal profession and the practice of law in the functional sense. Part II focuses on State v. Barlow, In re Integration of the Bar, and Turner. This section demonstrates that the court asserted its ultimate constitutional authority in Barlow and In re Integration to promote its vision of the public interest. In Turner it continued its expansive language but suggested a more functional analysis. Part III recommends a functional method for the future

\u3ci\u3eLawyers and Justice: An Ethical Study\u3c/i\u3e—A 60s Vision of Lawyering

David Luban\u27s book Lawyers and Justice: An Ethical Study supports a vision of lawyering that attempts to alleviate the inequities of wealth and power in American society. Luban makes three principal points. First, he argues for a professional ethic of moral activism; second, he establishes the moral legitimacy of legal aid; and third, he writes a defense, consistent with democratic theory, of progressive public interest lawyers. His principal focus is his claim for moral activism. I will review this argument. The argument leads to a lawyer\u27s role which Luban believes will promote the public good. He arrives at this conclusion by focusing on the individual lawyer. Can each lawyer, as an autonomous person, morally justify what she does in law practice? In answering this question, Luban concludes that moral activism is an appropriate role conception

The English Costs War, 2000–2003, and a Moment of Repose

In both the United States and England, accident victims are often entitled to compensation from negligent defendants and the defendants’ liability insurers. Accident claimants in the two countries, however, have different ways of funding their claims and litigation. In the United States, claimants use the American-style contingent fee agreement to pay for lawyers. In England, claimants have relied on legal aid and the two-way costshifting “English Rule,” pursuant to which a prevailing party can recover his solicitor’s fees and litigation costs, including counsel’s fees, from the losing litigant. Over the last decade, dramatic changes have been made to the English litigation funding system for many areas of law, particularly personal injury (with the exception, to date, of clinical negligence). The English eliminated legal aid and suddenly introduced the conditional fee agreement, without changing the English Rule. Between 2000 and 2003, disputes were continual, as claimants and their representatives pushed the new rules to the outer limits, and defendant liability insurance companies resisted in any way they could. This article will explain the contentious debate. Part II will compare the American and the traditional English way of funding personal injury litigation, particularly minor road accident cases. Part III will discuss some background factors that influenced the recent changes in England. Part IV will examine the first revised litigation funding system, and Part V will demonstrate how the development of after-the-event insurance and the second revised litigation funding system ameliorated some problems but also generated new ones. Part VI will discuss the consequences of the second revised litigation funding system, with particular emphasis on the development of claims management companies, the extensive satellite litigation and, where appropriate, comparisons to the U.S. Supreme Court’s resolution of similar problems. Part VII will conclude by noting that there is now a moment of repose in the struggle but no guarantee that dramatic disagreement will not reappear

\u3ci\u3eConAgra, Inc. v. Cargill, Inc.\u3c/i\u3e, an Interpretive Essay: A Target Corporation May, But Need Not, Agree That Its Directors Serve as Auctioneers for Its Shareholders

On March 7, 1986, the Nebraska Supreme Court decided ConAgra, Inc. v. Cargill, Inc. and issued a per curiam opinion. With this decision, the Nebraska Supreme Court entered one of the most controversial areas of modern corporate law—deciding what is the proper role for the directors of a target corporation in a takeover struggle. This essay\u27s interpretation is that ConAgra allows a corporation to pledge its directors\u27 and officers\u27 best efforts in a merger agreement and permits its directors to consider fairly the interests of all constituents of the corporate enterprise, including, but not limited to, the shareholders. ConAgra, properly understood, merely interpreted the best efforts clause in the ConAgra-MBPXL merger agreement. The court determined that this best efforts clause explicitly permitted the MBPXL directors to maximize the shareholders value by acting as auctioneers for their interests. The court\u27s underlying premise for this holding is that a corporation, may, when there are no other concerned corporate constituents, make such a merger agreement