Various calls have been made to reform the Model Rule of Professional Responsibility’s Model Rule 5.4, which prohibits nonlawyers from forming partnerships with lawyers or in the sharing of profits with lawyers. This paper looks to how allowing such a partnership could impact the required fiduciary duties of directors and officers.
{"title":"Defining Fiduciary Duties in a Majority Nonlawyer-Owned Law Firm: How Allowing Nonlawyer Owners Could Impact State Requirements of Director Fiduciary Duties","authors":"J. Gottschalk","doi":"10.2139/SSRN.2047733","DOIUrl":"https://doi.org/10.2139/SSRN.2047733","url":null,"abstract":"Various calls have been made to reform the Model Rule of Professional Responsibility’s Model Rule 5.4, which prohibits nonlawyers from forming partnerships with lawyers or in the sharing of profits with lawyers. This paper looks to how allowing such a partnership could impact the required fiduciary duties of directors and officers.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115762953","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyzes the ethics of deception in undercover investigations, and compares deception by government investigators and prosecutors with the same conduct in the hands of defense lawyers. The article also analyzes the permissible limits of deception when used by lawyers in civil litigation.
{"title":"Deception in Undercover Investigations: Status Based vs. Conduct Based Ethical Analysis","authors":"Barry R. Temkin","doi":"10.2139/ssrn.2875910","DOIUrl":"https://doi.org/10.2139/ssrn.2875910","url":null,"abstract":"This article analyzes the ethics of deception in undercover investigations, and compares deception by government investigators and prosecutors with the same conduct in the hands of defense lawyers. The article also analyzes the permissible limits of deception when used by lawyers in civil litigation.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116255073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines whether lawyers’ experience of time-based billing and billable hour budgets subjects them to pressures that encourage unethical practices. We argue that billable hour pressure is merely the ‘face’ of more fundamental pressures stemming from the way that lawyers in private practice perceive their work environments. Even without excessive billable hour targets, lawyers may be more likely to engage in unethical behaviour where they believe that unethical behaviour is necessary in order to meet performance indicators; that ‘everyone’ within the firm in which they work is engaging in such behaviour; and that there are no other ways to succeed at the firm – whether or not their beliefs are correct. If this is the case, the interventions necessary to prevent billing fraud must deal with lawyers’ perceptions and not merely the billable hours regimes in which lawyers work. Indeed quite fundamental reform of the way in which firms manage their lawyers and communicate expectations about billing and ethics might be necessary to achieve a healthier environment for lawyers and a less exploitative environment for clients. This paper examines these issues through data from the Queensland Billing Practices Survey (“the Survey”), run by the Legal Services Commission in Queensland, Australia. Solicitors from 25 private law firms answered questions about the billing systems, office culture and ethics policies of the firms in which they worked. From their responses, it is possible to gain a greater understanding of lawyers’ perceptions about their firm, how those perceptions influence their views about acceptable practice within the firm, and what can be done to change those perceptions.
{"title":"The Pressures of Billable Hours: Lessons from a Survey of Billing Practices Inside Law Firms","authors":"C. Parker, David Ruschena","doi":"10.2139/SSRN.1790082","DOIUrl":"https://doi.org/10.2139/SSRN.1790082","url":null,"abstract":"This paper examines whether lawyers’ experience of time-based billing and billable hour budgets subjects them to pressures that encourage unethical practices. We argue that billable hour pressure is merely the ‘face’ of more fundamental pressures stemming from the way that lawyers in private practice perceive their work environments. Even without excessive billable hour targets, lawyers may be more likely to engage in unethical behaviour where they believe that unethical behaviour is necessary in order to meet performance indicators; that ‘everyone’ within the firm in which they work is engaging in such behaviour; and that there are no other ways to succeed at the firm – whether or not their beliefs are correct. If this is the case, the interventions necessary to prevent billing fraud must deal with lawyers’ perceptions and not merely the billable hours regimes in which lawyers work. Indeed quite fundamental reform of the way in which firms manage their lawyers and communicate expectations about billing and ethics might be necessary to achieve a healthier environment for lawyers and a less exploitative environment for clients. This paper examines these issues through data from the Queensland Billing Practices Survey (“the Survey”), run by the Legal Services Commission in Queensland, Australia. Solicitors from 25 private law firms answered questions about the billing systems, office culture and ethics policies of the firms in which they worked. From their responses, it is possible to gain a greater understanding of lawyers’ perceptions about their firm, how those perceptions influence their views about acceptable practice within the firm, and what can be done to change those perceptions.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129794479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines the ethical requirements to legal process outsourcing with a specific focus on the ethical requirements of a Virginia lawyer wishing to outsource to India. The paper examines the duties of competence, confidentiality, conflict of interest, and others, in order to determine to what extent a lawyer could comply with his or her ethical requirements while much of the legal process entitled to ethical protection proceeds thousands of miles away.
{"title":"The Ethics of Legal Process Outsourcing","authors":"M. Aijaz","doi":"10.2139/SSRN.1689308","DOIUrl":"https://doi.org/10.2139/SSRN.1689308","url":null,"abstract":"This paper examines the ethical requirements to legal process outsourcing with a specific focus on the ethical requirements of a Virginia lawyer wishing to outsource to India. The paper examines the duties of competence, confidentiality, conflict of interest, and others, in order to determine to what extent a lawyer could comply with his or her ethical requirements while much of the legal process entitled to ethical protection proceeds thousands of miles away.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114854502","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A pending legislative proposal would authorize the U.S. Patent and Trademark Office (USPTO) to undertake a “supplemental examination” of an issued patent to “consider, reconsider, or correct information believed to be relevant to the patent.” It would further bar the federal courts from holding a patent unenforceable “on the basis of conduct relating to information” considered during supplemental examination. The obvious intent of the proposal is to constrain the federal courts’ power to entertain inequitable conduct-based challenges. Its emergence is unsurprising, given the mounting dissatisfaction with the courts’ application of the inequitable conduct doctrine. However, because the bill proposes to provide patent owners a forum for effectively purging the taint associated with intentionally undermining the integrity of the patent procurement process, it raises a number of interesting questions. This essay examines ethics-related implications of the supplemental examinations proposal. “Ethics” is broadly defined here to extend beyond potential ethics and discipline-related considerations for practitioners to related implications for the USPTO, the courts, and the patent system generally.
{"title":"Supplemental Examinations to Consider, Reconsider, or Correct Patent-Related Information: A Tangled Web Indeed","authors":"Lisa A. Dolak","doi":"10.2139/SSRN.1650648","DOIUrl":"https://doi.org/10.2139/SSRN.1650648","url":null,"abstract":"A pending legislative proposal would authorize the U.S. Patent and Trademark Office (USPTO) to undertake a “supplemental examination” of an issued patent to “consider, reconsider, or correct information believed to be relevant to the patent.” It would further bar the federal courts from holding a patent unenforceable “on the basis of conduct relating to information” considered during supplemental examination. The obvious intent of the proposal is to constrain the federal courts’ power to entertain inequitable conduct-based challenges. Its emergence is unsurprising, given the mounting dissatisfaction with the courts’ application of the inequitable conduct doctrine. However, because the bill proposes to provide patent owners a forum for effectively purging the taint associated with intentionally undermining the integrity of the patent procurement process, it raises a number of interesting questions. This essay examines ethics-related implications of the supplemental examinations proposal. “Ethics” is broadly defined here to extend beyond potential ethics and discipline-related considerations for practitioners to related implications for the USPTO, the courts, and the patent system generally.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132456739","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Current economic trends are motivating law firms and clients to reassess billing practices. The once invincible billable hour is increasingly criticized, and a growing number of attorneys are abandoning it in favor of "flat fee" or "fixed fee" arrangements. But flat fees can raise some prickly ethical issues, such as whether attorneys can charge non-refundable fees, whether legal fees are ever earned upon receipt, and whether advances of unearned fees must be treated as client property. Moreover, this past September, the D.C. Court of Appeals rekindled the debate surrounding these issues when it held, in In re Mance, that a flat fee remains the property of the client until his or her attorney performs the legal service envisioned by the fee.
This note hopes to serve as an introduction to flat fee ethics and examines the questions raised above in the context of In re Mance. Part I sets the framework for a discussion about flat fees by explaining common terminology that judges and lawyers use to describe various fee arrangements. Part II summarizes scholarship and judicial precedent surrounding the nonrefundable retainer and ownership of fees upon receipt. Part III examines the reasoning of In re Mance. And Part IV suggests steps attorneys should take in light of In re Mance to ethically accelerate access to flat fee funds.
当前的经济趋势促使律师事务所和客户重新评估计费做法。曾经不可战胜的按小时计费制度受到越来越多的批评，越来越多的律师正在放弃它，转而采用“固定收费”或“固定收费”的安排。但固定收费可能会引发一些棘手的道德问题，比如律师是否可以收取不可退还的费用，法律费用是否在收到后就能赚到，以及预付的未赚到的费用是否必须被视为客户财产。此外，今年9月，华盛顿特区上诉法院再次引发了围绕这些问题的辩论，当时它在“在离婚”(in re Mance)一案中裁定，在客户的律师履行该费用所设想的法律服务之前，固定费用仍然属于客户的财产。这篇文章希望作为对固定收费伦理的介绍，并在《爱情》的背景下探讨上述问题。第一部分通过解释法官和律师用来描述各种收费安排的常用术语，为讨论统一收费设置了框架。第二部分总结了奖学金和司法先例围绕不可退还的保留和所有权的费用收到。第三部分考察《罗曼史》的推理。第四部分则提出了律师们应采取的措施，以借鉴《金融危机》，从道德上加快获得固定收费基金的途径。
{"title":"Flat Fee Fundamentals: An Introduction to the Ethical Issues Surrounding the Flat Fee After In re Mance","authors":"T. Moore","doi":"10.2139/ssrn.3680036","DOIUrl":"https://doi.org/10.2139/ssrn.3680036","url":null,"abstract":"Current economic trends are motivating law firms and clients to reassess billing practices. The once invincible billable hour is increasingly criticized, and a growing number of attorneys are abandoning it in favor of \"flat fee\" or \"fixed fee\" arrangements. But flat fees can raise some prickly ethical issues, such as whether attorneys can charge non-refundable fees, whether legal fees are ever earned upon receipt, and whether advances of unearned fees must be treated as client property. Moreover, this past September, the D.C. Court of Appeals rekindled the debate surrounding these issues when it held, in In re Mance, that a flat fee remains the property of the client until his or her attorney performs the legal service envisioned by the fee.<br><br>This note hopes to serve as an introduction to flat fee ethics and examines the questions raised above in the context of In re Mance. Part I sets the framework for a discussion about flat fees by explaining common terminology that judges and lawyers use to describe various fee arrangements. Part II summarizes scholarship and judicial precedent surrounding the nonrefundable retainer and ownership of fees upon receipt. Part III examines the reasoning of In re Mance. And Part IV suggests steps attorneys should take in light of In re Mance to ethically accelerate access to flat fee funds.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131726597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Noah P. Barsky, A. H. Catanach, Ilya A. Lipin, Shelley Rhoades-Catanach
The attorney-client privilege is one of the foundations of our jurisprudence. Originally, designed to prevent attorneys from testifying against their clients, the privilege eventually evolved to reflect legal, societal, and financial complexities. This privilege depends on full disclosure and open communication between attorney and the client in order to provide competent and adequate representation. Today, attorneys often require and rely on expert guidance of accountants for various issues pertaining to litigation and transactional work. This article illustrates how the recent cases of Commissioner v. Comcast Corp. and United States v. Textron affect privileged communications in complex tax and transactional matters between attorneys and accountants retained for the purposes of client representation. The article also offers guidance on how to preserve privilege in communication between attorneys and accountants as waiver of such privilege may have significant and costly implications. At conclusion, unresolved issues pertaining to privileged communication are discussed and solutions are offered.
{"title":"Protecting a Client’s Confidences: Recent Developments in Privileged Communication Between Attorneys and Accountants","authors":"Noah P. Barsky, A. H. Catanach, Ilya A. Lipin, Shelley Rhoades-Catanach","doi":"10.5195/JLC.2010.1","DOIUrl":"https://doi.org/10.5195/JLC.2010.1","url":null,"abstract":"The attorney-client privilege is one of the foundations of our jurisprudence. Originally, designed to prevent attorneys from testifying against their clients, the privilege eventually evolved to reflect legal, societal, and financial complexities. This privilege depends on full disclosure and open communication between attorney and the client in order to provide competent and adequate representation. Today, attorneys often require and rely on expert guidance of accountants for various issues pertaining to litigation and transactional work. This article illustrates how the recent cases of Commissioner v. Comcast Corp. and United States v. Textron affect privileged communications in complex tax and transactional matters between attorneys and accountants retained for the purposes of client representation. The article also offers guidance on how to preserve privilege in communication between attorneys and accountants as waiver of such privilege may have significant and costly implications. At conclusion, unresolved issues pertaining to privileged communication are discussed and solutions are offered.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129668372","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper is the draft text of a lecture given at a Conference on Organizational Change organized by the Committee of Science and Ethics of the University of Leuven, KUL, on October 9, 2009. From a legal perspective I have presented two types of framework operating in two dimensions or on two levels. There is a regulatory and a contractual legal framework, operating from a top and street level. Moreover the law operates in different ethics roles: ethics defining and ethics compliance (matrix in figure 1). The legal perspective is a result of a multi-actor process involving different legal actors, scopes and methods that are all interacting in multiple ways, horizontally, vertically and diagonally (matrix in figure 2).
{"title":"Ethics in Organizational Change: Some Legal Perspectives","authors":"A. Verbeke","doi":"10.2139/ssrn.1771625","DOIUrl":"https://doi.org/10.2139/ssrn.1771625","url":null,"abstract":"This paper is the draft text of a lecture given at a Conference on Organizational Change organized by the Committee of Science and Ethics of the University of Leuven, KUL, on October 9, 2009. From a legal perspective I have presented two types of framework operating in two dimensions or on two levels. There is a regulatory and a contractual legal framework, operating from a top and street level. Moreover the law operates in different ethics roles: ethics defining and ethics compliance (matrix in figure 1). The legal perspective is a result of a multi-actor process involving different legal actors, scopes and methods that are all interacting in multiple ways, horizontally, vertically and diagonally (matrix in figure 2).","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114773744","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay focuses on the economics of law practice, the oversupply of lawyers, and the effects on the profession's ethical behaviour as a consequence of the saturation of the competitive fields of private law practice. The claim to principled self-regulation was always questionable but now is absurd. We should abandon the existing regulatory schemes - particularly removing control from lawyers and judges - if effective regulation is to have any chance in the competitive niches of the business of private law practice. The premise underlying this analysis is that the practice of law is a business and nothing but a business. Effective regulation of the business of law practice must take into account the diversity and dynamics of the distinct forms or dominant business models of the industry of law. As part of this analysis it is assumed that the aim of the private law business is to extract the maximum economic benefit from the available assets (clients) with the greatest efficiency and at the least cost to the business in terms of financial expenditure by the lawyer and efficient use of time to maximize earnings. The result is an irresolvable conflict between an "ethical" model of law practice that places the client at the center of the entire process and requires diligence, loyalty, communication, outcome evaluation, thorough preparation and effective advocacy, and a "business" model that focuses on the best economic outcomes for the lawyer and firm. Even though the business model clearly dominates we continue to pretend that the ethical model controls the interaction between lawyer and client. The result is that the entire regulatory system by which we purport to govern lawyers in order to protect the interests of clients is one that is poorly adapted to the real operating conditions of the practice of law as a business.
{"title":"Children of a Lesser God: Lawyers, Economics, and the Systemic Corruption of the Legal Profession","authors":"David R. Barnhizer","doi":"10.2139/SSRN.1375028","DOIUrl":"https://doi.org/10.2139/SSRN.1375028","url":null,"abstract":"This essay focuses on the economics of law practice, the oversupply of lawyers, and the effects on the profession's ethical behaviour as a consequence of the saturation of the competitive fields of private law practice. The claim to principled self-regulation was always questionable but now is absurd. We should abandon the existing regulatory schemes - particularly removing control from lawyers and judges - if effective regulation is to have any chance in the competitive niches of the business of private law practice. The premise underlying this analysis is that the practice of law is a business and nothing but a business. Effective regulation of the business of law practice must take into account the diversity and dynamics of the distinct forms or dominant business models of the industry of law. As part of this analysis it is assumed that the aim of the private law business is to extract the maximum economic benefit from the available assets (clients) with the greatest efficiency and at the least cost to the business in terms of financial expenditure by the lawyer and efficient use of time to maximize earnings. The result is an irresolvable conflict between an \"ethical\" model of law practice that places the client at the center of the entire process and requires diligence, loyalty, communication, outcome evaluation, thorough preparation and effective advocacy, and a \"business\" model that focuses on the best economic outcomes for the lawyer and firm. Even though the business model clearly dominates we continue to pretend that the ethical model controls the interaction between lawyer and client. The result is that the entire regulatory system by which we purport to govern lawyers in order to protect the interests of clients is one that is poorly adapted to the real operating conditions of the practice of law as a business.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126173188","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article demonstrates that current Sixth Amendment jurisprudence fails to account for how defense lawyers respond to conflicts of interest in criminal cases. Too often, the Supreme Court has made assumptions about the behavior of defense lawyers without empirical support. The result has been a confusing doctrinal landscape, which both relies upon and questions the ability of defense lawyers to address and resolve conflicts of interest. This article fills the gap in existing literature by viewing conflicts of interest in criminal cases through the prism of behavioral economics. The research reveals that defense lawyers are subject to psychological biases that undermine their ability to be objective when balancing self-interest with duties to others. The result is a systematic error of judgment that favors self-interest when conflicts are present. This article proposes a new approach to the Sixth Amendment that better aligns legal rules with how lawyers actually respond to conflicts of interest. Instead of the current test for ineffective assistance of counsel -- which requires proof that a conflict of interest adversely affected the representation provided -- the proposed test focuses on the degree of risk that a conflict existed before conviction. This test will reduce the importance of the testimony of the lawyer whose conduct is under scrutiny when a conflict is alleged.
{"title":"The Psychology of Conflicts of Interest in Criminal Cases","authors":"Tigran W. Eldred","doi":"10.17161/1808.20128","DOIUrl":"https://doi.org/10.17161/1808.20128","url":null,"abstract":"This article demonstrates that current Sixth Amendment jurisprudence fails to account for how defense lawyers respond to conflicts of interest in criminal cases. Too often, the Supreme Court has made assumptions about the behavior of defense lawyers without empirical support. The result has been a confusing doctrinal landscape, which both relies upon and questions the ability of defense lawyers to address and resolve conflicts of interest. This article fills the gap in existing literature by viewing conflicts of interest in criminal cases through the prism of behavioral economics. The research reveals that defense lawyers are subject to psychological biases that undermine their ability to be objective when balancing self-interest with duties to others. The result is a systematic error of judgment that favors self-interest when conflicts are present. This article proposes a new approach to the Sixth Amendment that better aligns legal rules with how lawyers actually respond to conflicts of interest. Instead of the current test for ineffective assistance of counsel -- which requires proof that a conflict of interest adversely affected the representation provided -- the proposed test focuses on the degree of risk that a conflict existed before conviction. This test will reduce the importance of the testimony of the lawyer whose conduct is under scrutiny when a conflict is alleged.","PeriodicalId":318823,"journal":{"name":"Legal Ethics & Professional Responsibility eJournal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134212220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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