Tag Archives: Volume 36 Issue 2

Constitutional Solutions to the Problem of Diplomatic Crime and Immunity

No one is above the law. This principle has been a driving force throughout the great ideological experiment known as democracy. From childhood, we are told that people who commit crimes must answer for them. However, the simplistic nature of … Continue reading

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Military Lawyering at the Edge of the Rule of Law at Guantanamo: Should Lawyers Be Permitted to Violate the Law?

“Where were the lawyers?” is the familiar refrain in the legal profession’s reflection on various corporate scandals. What is the legal and moral obligation of lawyers who have knowledge of ongoing illegality and criminal behavior of their clients? What should … Continue reading

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Competitor and Other “Finite-Pie” Conflicts

Does a lawyer offend ethical prohibitions against representing adverse parties by representing two different clients, in otherwise unrelated matters, if the two clients are business competitors? Lawyers who focus overmuch on long-range practice development, and thus who have much invested … Continue reading

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What Lawyers, What Edge?

When Monroe Freedman called and said that the conference was to be titled “Lawyering at the Edge,” my response was like that of Professor Steven Gillers. I said, “the edge of what?” An edge implies a shape, an area, and … Continue reading

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Scandals Great and Small

The conference theme—Lawyering at the Edge—evokes images of lawyers ensnared in legal scandals, lawyers testing the boundaries of the ethics rules, and lawyers at their moral and emotional limits. Lawyers at the edge labor under psychological and social pressures. They … Continue reading

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The Lawyer’s “Conscience” and the Limits of Persuasion

Like most criminal lawyers, I like to think of myself as a trial lawyer. It’s in my interest to do so. Among other things, it makes me a much more popular dinner—and perhaps conference—guest. I confess that I tend to … Continue reading

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Unethical Obedience by Subordinate Attorneys: Lessons from Social Psychology

Consider the plight of a lawyer—fresh out of law school with crushing loan debt and few job offers—who accepts a position at a medium-sized firm. A partner asks the young lawyer to review a client’s documents to determine what needs … Continue reading

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Prosecutors and Corrupt Science

Scientific evidence has made dramatic and well publicized contributions to improving the factual accuracy of criminal convictions. A 1996 Department of Justice study documented twenty-eight cases in which DNA evidence revealed that innocent defendants had been wrongly convicted, many serving … Continue reading

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The Chilling Effect that the Threat of Sanctions Can Have on Effective Representation in Capital Cases

The filing of Rule 11 sanctions motions against defense lawyers in capital cases has far-reaching and enduring consequences. Such motions can be used for harassment, to chill vigorous defense representation, or to dissuade defense counsel from raising and preserving appropriate … Continue reading

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Fighting Fire with Fire: Private Attorneys Using the Same Investigative Techniques as Government Attorneys: The Ethical and Legal Considerations for Attorneys Conducting Investigations

As any litigator knows, cases are won or lost on the facts. Effective factual development and investigation are crucial to the success of any case. But lawyers are often faced with legal and ethical dilemmas concerning the investigative techniques they … Continue reading

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