The Professional Lawyer, Volume 24, Number 1

      March 2017

    Courts & Judiciary

    Rethinking Judicial Selection

    The quality of justice suffers when politics invades the judicial sphere, casting doubt on the impartiality of case outcomes and eroding public confidence in our nation’s system of justice. The author, senior counsel in the Democracy Program at the Brennan Center for Justice and an authority on the judicial system, observes that intensifying politicization of the judiciary is a problem that cannot be solved by merit selection of judges alone. She makes the case that the states and would-be reformers should consider a new framework for judicial selection reform, rooted in what we know about how existing systems advance or impede important values such as judicial independence, democratic legitimacy, and diversity on the bench.

    Articles

    Ethics

    Lessons Learned from the NC Dental Board Decision by a State Bar Officer and Antitrust Lawyer

    A North Carolina bar leader and antitrust lawyer, the author identifies critical lessons for bar regulators from the seminal US Supreme Court opinion in North Carolina State Board of Dental Examiners v. FTC. Although regulators must heed the antitrust warnings of NC Dental Examiners or risk losing autonomy in regulation of the practice of law, the author observes that regulators will stay on solid antitrust ground as long as they act squarely within their authority, employ careful rulemaking, make a record that justifies the action, stay prepared to sue to curtail unauthorized practice, and set a high ethical tone.

    Ethics

    Forensic Examination of Digital Devices in Civil Litigation: The Legal, Ethical and Technical Traps

    Lawyers are responsible for determining the legally and ethically permissible boundaries of conducting forensic examinations of digital devices in litigation, and in so doing must carefully consider the quality and scope of the consent given, i.e., the authority under which the examination is to be performed. What may start out as a lawful and ethical search may quickly turn questionable, or even plainly unlawful, depending on the scope of the permission granted, what evidence is developed, and how the recovered information implicates the privacy rights of third parties. While the evidence from such devices can amount to a smoking gun, you don’t want it to backfire and find yourself sued, prosecuted, or disbarred for actions that, in hindsight, could have been avoided with a modicum of foresight.

    Ethics

    Representing Child-Clients with “Diminished Capacity”: Navigating an Ethical Minefield

    The author, an authority in the area of child welfare law, cautions lawyers appointed to represent children to tread carefully, lest they overstep the often blurred line between the lawyer advocate’s loyalty to the client’s professed wishes and the legal guardian’s fidelity to the “best interests of the child” standard. Advocates assigned to represent children often face ethical and legal dilemmas arising from their clients’ status as individuals with “diminished capacity.” The ethical complexity of child representation is reflected in a decidedly mixed bag of state laws informing the roles of lawyers representing children versus guardians ad litem.

    Lawyer Discipline

    Public Discipline Is More “Public” Than Ever: The Impact of Web-Based Lawyer Rating Services on Discipline

    Public awareness of lawyer discipline has swung from one extreme to another. Virtually hidden from public view half a century ago, discipline of lawyers today is often on prominent public display via Internet-based rating services, commonly in consumer practice areas. The author, a legal ethics practitioner and teacher, points out that the lasting Internet imprint of even low-level public lawyer discipline today has changed the calculus of disciplinary proceedings in many cases. There is a greater push by many respondents for non-public forms of discipline. Lawyers and judges sitting in an adjudicatory capacity understand that even a public sanction at the level of a reprimand may significantly affect a lawyer’s future practice.

    New Attorneys

    Letter to the Editor: Student Control of Law Reviews Presents No Ethical Dilemma

    In a Letter to the Editor, a law review editor takes exception with Professor Neil Hamilton’s essay (Neil Hamilton, The Law Faculty’s Ethical Failures Regarding Student-Edited Law Reviews, 23 The Prof’l Law. no. 4 (2016)), arguing that law school faculty have an ethical obligation to assume active oversight of the content of student-edited and -managed legal journals. The writer, Dean Williams, asserts that each generation of law students brings a new perspective on the social values, problems, and opportunities that await practicing lawyers, a perspective that makes student editors well equipped to control the content of legal journals leading the discussion of trending topics in the law.

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