The Experts below are selected from a list of 19356 Experts worldwide ranked by ideXlab platform
Tory L Lucas - One of the best experts on this subject based on the ideXlab platform.
-
to catch a criminal to cleanse a profession exposing deceptive practices by attorneys to the sunlight of public debate and creating an express investigation deception exception to the aba model rules of professional conduct
Social Science Research Network, 2011Co-Authors: Tory L LucasAbstract:“In undertaking the privilege to practice law, I do solemnly swear that I will lie, deceive, misrepresent, and engage in fraud in order to serve my client’s and my own personal interests.”It is doubtful that any American attorney believes that he or she has sworn such an oath (or openly advocates the use of such an oath for newly sworn attorneys). But does every American attorney share the same understanding of whether attorneys may ethically engage in deception? The issue of attorney deception has not enjoyed a thorough, open discussion necessary for a consistently applied standard on that issue. This must change. This Article seeks to start an open and honest discussion among American attorneys on whether attorneys may ethically engage in deception, and, if so, to what extent and under what circumstances.As a general matter, attorneys must act ethically at all times. But what constitutes ethical behavior is open to debate. It seems straightforward to state that the American system of justice demands that attorneys should strive to ensure that they conduct themselves in ways that inspire public trust in the rule of law. As a self-regulated profession, that public trust finds itself manifested in a body of Legal ethics that each attorney should strive to meet and exceed. Any doubt – whether collectively or individually – about whether attorney conduct improves public trust in the rule of law, the American system of justice, or the public’s perception of attorneys should be resolved well on the side of caution and not on the whimsical side of recklessness. That is, the line of ethical attorney behavior should always be drawn on the safe side of the line to avoid the rule of law of becoming suspect, the legitimacy of the American system of justice of being questioned, or the public’s losing faith in the honesty and trustworthiness of attorneys. Because of conflicting constituencies, however, how and where to draw ethical boundaries does not always lead to a single solution. In determining the boundaries of ethical behavior, attorneys are required to balance their duties to clients, the system of justice, participants in that system, and democratic society itself. Again, how does attorney deception impact the American Legal system? That is the question that this Article seeks to address.This Article explains that the American Bar Association’s (ABA’s) Model Rules of Professional Conduct (Model Rules) currently do not contain a deception exception – whether express or implied – that authorizes attorneys to freely engage in deception. Should ethics rules expressly authorize attorneys to freely engage in deceptive practices? Would attorney deception ultimately impair the American system of justice? This Article maintains that the Model Rules – and whatever rules that various states ultimately adopt – should not authorize attorney deception. The ethical determination that attorneys should not engage in deception, however, is not the end of the discussion. Society demands a broader debate about deception generally.There are circumstances in which American society has widely accepted deceptive practices, whether employed by advocacy groups or law enforcement. For example, longstanding policies of federal and state governments employ deception in undercover criminal investigations, various civil-rights groups employ deception to root out and eradicate unlawful discrimination, and holders of intellectual property rights employ deception to ensure that others do not unlawfully infringe upon those rights. Although a certain amount of deception is required to support these investigative efforts (because those suspected of unlawful activity are unlikely to continue their lawlessness if an investigator reveals his true purpose), there is no sound public policy that requires attorneys to personally engage in the deception. This Article contends that the Legal profession should not tolerate attorneys personally engaging in deception. Period. That does not mean, however, that ethics rules should prohibit attorneys from having the authority and capability to advise non-attorneys from using deception when otherwise lawful. That is, if a non-attorney enjoys the Legal right to employ deception to root out lawlessness, then ethics rules should not exclude attorneys from providing Legal Advice in that otherwise Legal process. To ensure that attorneys do not personally engage in deception while simultaneously permitting attorneys to provide Legal Advice to non-attorneys who wish to lawfully employ deception, this Article promotes a well-defined investigation exception to the prohibition of attorney deception. Perhaps a more apt title is the “investigation deception exception.”This Article proposes an express investigation deception exception to the Model Rules, which would authorize an attorney, government or private, who is acting in his or her representational capacity, to utilize a non-attorney third-party to employ deception under well-defined circumstances. This exception would never allow a practicing attorney to personally use deception to further a client’s objectives (but an attorney who is not acting in his or her representational capacity (e.g., an agent with the Federal Bureau of Investigation) would be able to employ deception under narrow circumstances if not otherwise prohibited by law). If the ABA (or individual states for that matter) adopt this Article’s express investigation deception exception, the narrow exception would allow attorneys to simply provide Legal Advice to non-attorneys who choose to use otherwise lawful deception to investigate unlawful activity that otherwise would go undetected – instances such as rooting out unlawful discrimination, protecting intellectual property rights, and directing criminal investigations. Since society has not outlawed the use of deception in those circumstances generally, then ethics rules governing attorney behavior should reflect societal mores. Indeed, if society authorizes deception in those types of cases already, then it would seem counter-productive to remove attorneys altogether from providing Legal Advice to those investigators through the misplaced application of attorney ethics rules. This proposed investigation deception exception attempts to balance society’s need to investigate unlawful conduct by all lawful means with the need of attorneys to be held to the highest ethical standards while promoting transparency in the Legal profession. This proposal should not, in any way, diminish an attorney’s ethical obligations under the Model Rules or remove an attorney from a client’s cause that may desperately seek Legal Advice. Rather, the proposed rule recognizes areas in which society has found it desirable to employ deception to discover lawless conduct and makes clear that attorneys should not be discouraged from providing Legal Advice to those non-attorneys who employ lawful deception under narrow and well-defined circumstances. Currently, only a few states have engaged in an open debate on the issue of attorney deception, which has resulted in amendments to those states’ ethics rules to explicitly address the issue. That is the proper way to address the issue, rather than encouraging each individual (and inherently self-interested) attorney to create implied deception exceptions to ethics rules. Such an ad-hoc, case-by-case, individualistic approach to deception exceptions may cause an individual attorney to later face ethical misconduct charges, even though the attorney believed that his or her deception should be authorized, or, perhaps worse, may cause substantial damage to the Legal profession as a whole and, ultimately, the American system of justice. Although some members of the Legal community argue for an implied deception exception, this approach arguably would promote uncertainty in outcome and inspire an ends justify the means mentality within the Legal community. The best approach would be for attorneys to openly and fully debate the issue of attorney deception and then clearly define the boundaries placed on the use of deception. To that end, this Article contends that the ABA should take the lead and adopt this Article’s express investigation deception exception to the Model Rules. Once the ABA fully debates the issue of attorney deception and establishes an analytical framework on how best to address the issue, then the states undoubtedly will be confronted with the issue of attorney deception more directly. To get the debate on attorney deception rolling, please consider reading this Article and encouraging your state bar to fully enter the discussion.
Joanna Miles - One of the best experts on this subject based on the ideXlab platform.
-
mediation financial remedies information provision and Legal Advice the post laspo conundrum
Journal of Social Welfare and Family Law, 2016Co-Authors: Emma Hitchings, Joanna MilesAbstract:AbstractThe near-total collapse in numbers of solicitors providing Legal Advice and assistance to publicly-funded clients attempting to settle private family law issues through mediation since the Legal aid reforms implemented in 2013 raises important questions about how, if at all, clients in mediation can receive Legal information and Advice other than from lawyers in financial cases following divorce. This article explores, in a preliminary way, this aspect of mediation practice, drawing on small-scale qualitative data from a study conducted shortly prior to the Legal aid reforms concerning the settlement of such cases. It explores how mediators then approached their (permissible) function of providing clients with Legal information and how they dealt with cases where they felt that the proposed outcome was particularly unfair to one party or unlikely to be endorsed by a court, and asks how mediation practice – and Legal practice – may come under pressure to change in this brave new world.
-
Legal aid article 6 and exceptional funding under the Legal aid etc bill 2011
Social Science Research Network, 2011Co-Authors: Joanna MilesAbstract:As readers of Family Law will be aware, the tautologously entitled Legal Aid, Sentencing and Punishment of Offenders Bill 2011 which commenced its Commons Committee stage in mid-July will drastically curtail the availability of Legal aid for Legal Advice and representation in private family law matters. Funding will be available in relation to ‘victims of domestic violence and family matters’ and ‘protection of children and family matters’ (Sch 1, paras 10 and 11, the detailed operation of which will be determined by regulations yet to be drafted). But in other cases, should mediation (Sch 1, para 12) fail to produce a satisfactory (or any) settlement or simply be judged unsuitable, the individual will face the stark choice of acting in person or just giving up – unless he or she obtains ‘exceptional funding’ under clause 9. Much could be written about the Bill’s perverse provision of Legal aid for mediation of family cases to the exclusion of lawyer-led negotiation, and about the government’s failure to acknowledge the essential out-of-court role played by family law practitioners. But that is not the focus of this article, which asks instead: in what circumstances will exceptional funding for Legal Advice and assistance be available under the new regime?This article was published by Family Law (a publishing imprint of Jordan Publishing Ltd) in the September 2011 issue of the journal Family Law, at [2011] Fam Law 1003.
Simon Rice - One of the best experts on this subject based on the ideXlab platform.
-
a human right to Legal aid
Social Science Research Network, 2009Co-Authors: Simon RiceAbstract:If Legal aid means nothing more than Legal representation in court, then to that extent there is a right to Legal aid, although of limited availability. It is a right that has been found to be implicit, in various Legal systems and in human rights instruments. But a right to Legal aid could mean so much more than a limited right to Legal representation. I argue for Legal aid in its broadest sense as a fundamental human right, guaranteeing public access not only to Legal institutions and Legal representation, but as well to Legal information, Legal Advice, and Legal education and knowledge. The key to establishing a right to a broader idea of Legal aid lies in understanding the role of the state from a human rights perspective rather than a welfarist one. After reviewing cases and human rights treaties that describe a right to Legal representation, I conclude that even that right is available only in limited circumstances. I then outline a new argument for a fundamental human right not only to Legal representation, but to 'Legal aid' more broadly understood.
Simone Wong - One of the best experts on this subject based on the ideXlab platform.
-
revisiting barclays bank v o brien and independent Legal Advice for vulnerable sureties
The Journal of Business Law, 2002Co-Authors: Simone WongAbstract:Scope and application of O'Brien principle, including when bank is put on inquiry and requirement for independent Legal Advice, and clarification of principle in Etridge, including presumed undue influence and manifest disadvantage.
-
no man can serve two masters independent Legal Advice and solicitor s duty of confidentiality
1998Co-Authors: Simone WongAbstract:Nature of requirement for independent Legal Advice to be given to surety, whether higher standard of Advice is required, and resulting conflict of interest between disclosure and confidentiality where solicitor acts for both parties.
Nicholas Gill - One of the best experts on this subject based on the ideXlab platform.
-
conveyor belt justice precarity access to justice and uneven geographies of Legal aid in uk asylum appeals
Antipode, 2017Co-Authors: Andrew Burridge, Nicholas GillAbstract:Ongoing government funding cuts to British Legal aid have resulted in the formation of Legal deserts and uneven geographies of access to Advice and Legal representation. Asylum seekers, particularly those subjected to no-choice dispersal throughout the UK for housing, are enduring the impact of these cuts directly. This paper explores the spatial and Legal marginalisation of asylum seekers, drawing upon the findings of a three-year study of the asylum appeals process. Already precarious, we analyse the manifold spatial marginalisation of dispersed asylum seekers from sources of Legal Advice and representation. We identify the frames of luck, uncertainty and dislocation as ways to further a spatially cognisant understanding of precarity, alongside identifying strategies employed to counter precarious positionalities.
