RESOURCES
Law Review Articles
I. ATTORNEYS / CLIENTSII. JUDICIAL / LEGISLATIVE REVIEW
III. LEGAL PROFESSIONALISM
I. ATTORNEYS / CLIENTS
Adams, Craig N., Clients Beware: Texas Courts Allow Discharged Attorneys to Recover in Full Under Contingent Fee Contracts, 22 Tex. L. Rev. 1159 (1991).
Argues that, in the interest of client freedom, "the court should prevent discharged attorneys from enforcing original contingent fee obligations against their clients."
Bernstein, Dina, Recent Developments--Limitation of Actions--Legal Malpractice, 23 St. Mary’s L.J. 1185 (1992).
Discusses the difficulties involved in attorney-client relationships and, specifically, problems with legal malpractice actions.
Cedillo, Ricardo G. & David Lopez, Document Destruction in Business Litigation from a Practitioner’s Point-of-View: The Ethical Rules vs. Practical Realities, 20 St. Mary’s L.J. 637 (1989).
Calls for more substantial penalties against attorneys who deceive courts by destroying documents that would run counter to their clients’ interests, and urges attorneys to protect their clients from document destruction by others.
Champion, Laura R. & William M. Champion, Television Advertising: Professionalism’s Dilemma, 23 St. Mary’s L.J. 331 (1991).
Gives a historical account of legal advertising before focusing specifically on television ads and asserting the hope that attorneys will take self-regulation of their advertisements’ content seriously.
Dzienkowski, John S., Positional Conflicts of Interest, 71 Tex. L. Rev. 457 (1993).
Explores the manifold conflicts of interest that can occur when one attorney of firm represents multiple clients in similar, if not directly related, cases. Principal topics are litigation, lobbying, and transactional positional conflicts as well as professional responsibility and breeches of confidentiality.
Elliott, Jerry, The First Amendment, In Re R.M.J., and State Regulation of Direct Mail Lawyer Advertising, 34 Baylor L. Rev. 411 (1982).
Overviews the status of legal advertising before making an argument in favor of allowing direct mailing--claiming that this freedom would benefit solo practitioners and encourage more competitive pricing for legal services.
Enoch, Craig, Incivility in the Legal System? Maybe It’s the Rules, 47 SMU L. Rev. 199 (1994).
Lists and describes the many elements other than "Rambo" tactics that contribute to "the maladies of the profession."
Gibbs, Thomas & Bryan A. Garner, The Uncivil Lawyer: A Scourge at the Bar, reprinted in 15 Rev. Litig. 1 (U. of TX School of Law, Winter 1996).
A lament about the decline of civility among American lawyers and a differentiation of formalized ethics from simple good manners with speculation about the modern causes for neglect of the latter.
Gunas, Peter J. III, Liberalizing Attorney Advertising Restraints: Targeted Direct-Mailing Gains First Amendment Freedom in Shapero v. Kentucky Bar Association, 42 Sw. L.J. 999 (1988).
In light of new ruling about direct-mailings, prophecies that "consumers are likely to find their mailboxes increasingly filled with solicitations directed at their particular legal circumstances."
Kane, Mary Kay, Of Carrots and Sticks: Evaluating the Role of the Class Action Lawyer, 66 Tex. L. Rev. 385 (1987).
A call for action and thought about ways to improve lawyers’ handling of class actions; discusses conflict of interest and case management problems and suggests implementation of incentives to encourage attorney cooperation and efficiency.
Lee, Elwyn C., Lawyer Referral Services: A Regulatory Wasteland, 37 Sw. L. J. 1099 (1984).
Investigates bar associations’ often unsatisfactory "efforts to provide reliable lawyer referral services to consumers of moderate means" and calls for "a heightened awareness of the importance" of the function they are intended to serve.
Medina, J. Michael, Ethical Concerns in Civil Appellate Advocacy, 43 Sw. L.J. 677 (1989).
"In the main," Medina concludes, "the rules of ethical appellate practice derive from common sense, prudence, and public policy. The appellate attorney must provide ethical service to his clients and courts ...."
Monsour, Douglas C., How Long Will Privity of Contract Remain a Defense to Legal Malpractice?, 24 Tex. Tech L. Rev. 961 (1993).
Worries that a Texas Supreme Court case holding "that an excess insurance carrier has an equitable subrogation action against a trial counsel for mishandling a claim" could lead to "pandemic litigation against attorneys" and that attorneys might therefore, as a preventative measure, refuse to offer their clients as much assistance as they should.
Murray, Sara, The Whole Truth or Nothing But the Truth? Should Attorneys Who Advertise Be Required to Disclose Prior Disciplinary Actions Taken Against Them?, 21 St. Mary’s L.J. 953 (1990).
Answers its title’s question by stating, in the conclusion: "Although an attorney might legitimately be required to disclose basic factual information about the legal services he offers, the public’s right to know does not justify demanding an attorney to make unduly burdensome disclosures."
Wallace, James P. & M.R. Yogi McKelvey, Regulating Attorney Advertising, 18 Tex. Tech. L. Rev. 761 (1987).
Takes a dim view of legal advertising’s ability to relay pertinent information to potential clients and therefore calls for it to be more strictly regulated.
II. JUDICIAL / LEGISLATIVE REVIEW
Allen, Gregory L., Texas Finally Adopts a Standard By Which to Govern Former Client Conflicts of Interest: Texas Disciplinary Rules of Professional Conduct Rule 1.09, 21 Tex. Tech L. Rev. 737 (1990).
Centers about conflict of interest issues and questions the replacement of the Texas Code of Professional Responsibility with the Texas Disciplinary Rules of Professional Conduct by suggesting that the latter might restrict "the freedom of today’s lawyer."
Ashby, Christopher M., Bankruptcy Code Section 327(A) and Potential Conflicts of Interest--Always or Never Disqualifying?, 29 Hous. L. Rev. 433 (1992).
Provides a plan for courts to regulate more effectively conflict of interest problems in modern bankruptcy practice.
Ashby, Christopher M., Bankruptcy Code Section 327(A) and Potential Conflicts of Interest--Always or Never Disqualifying?, 29 Hous. L. Rev. 2 (1992).
A call for courts to work to clarify the complex evaluation of conflicts of interest in modern bankruptcy practice instead of waiting for Congress to do so.
Atwell, Christopher D., Constitutional Challenges to Court Appointment: Increasing Recognition of an Unfair Burden, 44 Sw. L.J. 1229 (1990).
Calls for Supreme Court decision-making, at least in terms of rules regulating appointment of lawyers by lower courts, to be more up-to-date and in accordance with criminal law in its current state.
Bauman, John H., The Statute of Limitations for Legal Malpractice in Texas, 44 Baylor L. Rev. 425 (1992).
Calls for Texas courts to review statute of limitation exemptions with their purpose--that is, "to prevent litigation of stale or fraudulent claims"--always in mind.
Beck, Lauren, Cosgrove v. Grimes: Abrogation of the Subjective Good Faith Expectation in Legal Malpractice Actions, 42 Baylor L. Rev. 601 (1990).
Attacks the Texas Supreme Court for "fail[ing] to realize that trying to equate all professional matters by establishing an objective negligence standard was not the answer" to solving the problem of determining when a lawyer is guilty of malpractice.
Bruckner-Harvey, Anne G., Inadvertent Disclosure, 46 Baylor L. Rev. 385 (1994).
A comment on "how courts should analyze the issues raised by an inadvertent disclosure of a privileged document resulting from a missent fax."
Fletcher, John, Gentile v. State Bar of Nevada: ABA Model Rule 3.6 as the Constitutional Standard fro Reviewing Defense Attorneys’ Trial Publicity, 46 SMU L. Rev. 293 (1993).
Argues that the Model Rule should either provide full immunity or clearly state its situation-dependent ability or inability to do so.
Frost, Lawrence J., Bryant W. Burke, & Philip D. Weller, Real Property, 45 Sw. L.J. 2005 (1992).
A review of the 1992 deficiency-limiting legislation passed in Texas and an explanation of its effect on real estate law.
Garon, Jeffery, Successive Conflicts of Interest and the Motion to Disqualify: The Impact of the Texas Rules of Professional Conduct, 47 SMU L. Rev. 399 (1994).
Hopes that the ethics rules regarding motions to disqualify attorneys "will continue to remain constant so the potential for a disqualification can be accurately gauged before the need to embark on a dispute of the propriety of representation...."
Govett, Brett C., Lawyers Beware: Texas Adopts the Discovery Rule for Legal Malpractice, 20 Tex. Tech L. Rev. 1279 (1989).
Calls for the implementation of a statute that would curb the "open-ended" liability that attorneys are subject to under the Discovery Rule for legal malpractice.
Gunn, David M., "Unpublished Opinions Shall Not Be Cited as Authority": The Emerging Contours of Texas Rule of Appellate Procedure 90(I), 24 St. Mary’s L.J. 115 (1987).
Criticizes Rule 90(I), submitting that "changes in the appellate process, discretionary jurisdiction for courts of appeals, or abolition of the opinion requirement might be more effective" than it.
Hegland, Kenney, Quibbles, 67 Tex. L. Rev. 1491 (1989).
Offers a lively but serious critique of the loopholes lawyers use to exonerate guilty clients and other legal technicalities (i.e., statute of limitations) that act against justice in a theoretical sense.
Jenkins, Helen Bishop, Privity--A Texas-Size Barrier to Third Parties for Negligent Will Drafting--An Assessment and Proposal, 42 Baylor L. Rev. 687 (1990).
Submits that "the privity barrier against third party beneficiary recovery against attorneys for negligent will preparation" should, in light of the existence of many other available remedies, be dissolved.
Keeling, Bryan C., A Prescription for Healing the Crisis in Professionalism: Shifting the Burden of Enforcing Professional Standards of Conduct, 25 Tex. Tech. L. Rev. 31 (1993).
Argues that "using institutional codes of conduct to enforce professional standards would produce fairer results than continuing the outmoded structure of judicial punitive devices."
Larkin, Murl A. & Cathleen C. Herasimchuk, Article II: Judicial Notice, 30 Hous. L. Rev. 193 (1993).
Provides commentaries on rules governing judicial notice of adjudicative facts, discretionary and mandatory rules, the certifiably certain facts, discretionary and mandatory rules, the opportunity to be heard, time of taking notice, and instructing the jury in both civil as well as criminal trials.
Lionberger, Philip A., Interference With Prospective Civil Litigation by Spoliation of Evidence: Should Texas Adopt a New Tort?, 21 St. Mary’s L.J. 209 (1989).
Argues that Texas should follow other states’ lead and adopt "a tort for spoliation of evidence ... to protect an injured party’s right to compensation from the wrongdoer."
Medina, Xavier G. & Virginia Coyle, Texas Disciplinary Rules of Professional Conduct: Additional Liability for Texas Lawyers?, 21 St. Mary’s L.J. 733 (1990).
Argues that the Texas Disciplinary Rules of Professional Conduct, which "establish the minimum standard lawyers must meet in relationships with each other, the legal system, and the public as a whole," should also be the basis for regulating the attorney-client relationship.
Moore, Nancy J., Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 Tex. L. Rev. 211 (1982).
An attack of the current "adequacy" standard governing rulings about attorneys’ representation of multiple clients; concludes "that current attempts to regulate the simultaneous representation of conflicting interests are woefully inadequate" and proposes new guidelines for cases involving multiple representation.
Perry, Gregory, Junk Mail and the Bar: United States Supreme Court Ends Its Silence (and Much of the Confusion) Regarding Targeted Direct Mail Advertising by Attorneys by Invalidating ABA Model Rule 7.3, 20 Tex. Tech L. Rev. 937 (1989).
Worries that state regulatory agencies will be overly burdened with trying "to prevent abuses" of attorney advertising rules that deny attorneys the right to send direct-mail advertisements.
Perry, Gregory, Junk Mail and the Bar, 20 St. Mary’s L.J. 937 (1989).
Predicts that the invalidation of the ABA Model Rule of Professional Conduct 7.3, which regulated the content of legal advertisements, will encourage attorneys to broadcast and publish ads that "will damage the image and respect of the legal profession."
Rau, Alan Scott, Resolving Disputes Over Attorneys’ Fees: The Role of ADR, 46 SMU L. Rev. 2005 (1993).
Discusses the pros and cons of mandatory arbitration of fee disputes, claiming that opposition to it "is likely ... to be an effective barrier to reform."
Silver, Charles, Unloading the Lodestar: Toward a New Fee Award Procedure, 70 Tex. L. Rev. 865 (1992).
Attempts "to set out and defend a theory on which a new fee award procedure could be based, to design a procedure that applies the theory, and to improve judicial administration by proposing a number of reforms...."
Steele, Walter W., Jr., Unethical Prosecutors and Inadequate Discipline, 38 Sw. L.J. 965 (1984).
Claims that "unethical conduct by prosecutors at trial is seldom dealt with by the grievance process" and suggests "a new approach to the issue of controlling prosecutors’ conduct...."
Sutton, John F., Jr., Outlawing Unjust Rules of Law: A Response to Quibbles, 67 Tex. L. Rev. 1517 (1989).
Sympathizes, partially and generally, with Sutton’s thesis about the balefulness of legal technicalities’ abuse but sarcastically dismisses its progenitor’s proposed solution as both in determinant and impractical.
Ward, Steven K., Developments in Legal Malpractice Liability, 31 S. Tex. L. Rev. 121 (1990).
Notes the "recent escalation in liability for malpractice," and argues that "the law of professional malpractice should be uniform, unless it can be shown that one profession is more deserving of protection than another...."
Weinstein, Harris, Client Confidences and the Rules of Professional Responsibility: Too Little Consensus and Too Much Confusion, 35 S. Tex. L. Rev. 727 (1994).
Summarizes the development of the ABA’s rules on disclosure of confidential information, considers the variations in rules from state to state, and finally suggests "the questions that should be considered in seeking to develop a broader consensus."
Wise, Robert K., The Lawyer-Witness Rule: A Comparison of a Lawyer’s Ability to Be Both a Witness and an Advocate Under the Texas Code of Professional Responsibility and the Texas Disciplinary Rules of Professional Conduct, 31 S. Tex. L. Rev. 651 (1990).
Applauds Texas Rule 3.08 concerning lawyer-witness for its clear focus and its likely elimination of "misuse of the rule for tactical and harassment purposes in the guise of disqualification motions."
III. LEGAL PROFESSIONALISM
Anderson, Roy Ryden & Walter W. Steele, Jr., Fiduciary Duty, Tort and Contract: A Primer of the Legal Malpractice Puzzle, 47 SMU L. Rev. 235 (1994).
Lists and describes the many elements other than "Rambo" tactics that contribute to "the maladies of the profession."
Atwell, Christopher D., Professional Responsibility, 22 Tex. Tech L. Rev. 1681 (1991).
Concludes that lawyers need always to stay informed and up-to-date about professional responsibility regulations.
Black, Ray J., Jr., Mary Carter Agreements Are Void in Texas As Contrary to Public Policy, 35 S. Tex. L. Rev. 183 (1994).
Argues that "Mary Carter agreements "impair the right to a fair trial" by circumventing fact issues and engaging in an unethical kind of legal gambling.
Cavico, Frank J., Invasion of Privacy in the Private Employment Sector: Tortious and Ethical Aspects, 30 Hous. L. Rev. 1263 (1993).
Asserts that employers have a moral responsibility--above and beyond that required by tort law--to respect their employees’ right to privacy.
Fitzwater, Sidney A., Toward a Renaissance of Professionalism in Trial Advocacy, 20 Tex. Tech L. Rev. 787 (1989).
Calls for a heightening of professionalism and civility among lawyers.
Gallagher, Lori & Andrew S. Hanen, Attorney-Client Conflicts of Interest and Disqualification of Counsel in Texas Litigation, 24 Tex. Tech L. Rev. 1039 (1993).
Claims itself to be "a reference that Texas attorneys can consult ... [about] conflicts of interest and attorney disqualification," and thus aims to prevent malpractice cases, losses of fees, sanctions against attorneys, unfavorable verdicts resulting from ethical transgressions.
Heil, Patricia Sue, Tending the Bar in Texas: Alcoholism as a Mitigating Factor in Attorney Discipline, 24 St. Mary’s L.J. 1263 (1993).
An argument for recognition and understanding of alcoholism among attorneys.
Hillman, Robert W., Law Firms and Their Partners: The Law and Ethics of Grabbing and Leaving, 67 Tex. L. Rev. 1 (1988).
Calling them "temporary resting places for their partners," discusses the current state of law firms and, most centrally, the inter-firm machinations that jeopardize their clients’ rights.
Kline, Samara Lackman, Motions to Disqualify Based on Conflicts of Interest--Identifying the Rules of the Game, 25 St. Mary’s L.J. 739 (1994).
An explanation of the many factors an attorney must take into account to avoid a conflict of interest.
LaRoe, Katherine A., Much Ado About Barratry: State Regulation of Attorney’s Targeted Direct-Mail Solicitation, 25 St. Mary’s L.J. 1513 (1994).
A call for attorneys to take matters into their own hands and regulate direct-mail solicitation themselves before the state interferes to do the same.
McKinney, Richard A., Proposed Model Rule 1.6: Its Effect on a Lawyer’s Moral and Ethical Decisions with Regard to Attorney-Client Confidentiality, 35 Baylor L. Rev. 561 (1983).
Attacks the 1983 adoption by the ABA of the Trial Lawyers Amendment concerning confidentiality on the premise that "it cannot be professionally right to adopt a rule that requires lawyers to violate their personal and professional integrity."
Mears, Rona R., Ethics and Due Diligence: A Lawyer’s Perspective on Doing Business with Mexico, 22 St. Mary’s L.J. 605 (1991).
Presents the problems with--and some ethical guidelines for--representing clients in cross-border transactions.
Powell, Burnele V., Lawyer Professionalism As Ordinary Morality, 35 S. Tex. L. Rev. 275 (1994).
Begins by trying to define "professionalism," then moves on to topics such as "Choosing a Client," "Winning for the Client," and, finally, "Why the Profession and Public Should Care."
Sanford, Jeb C., Ethical, Statutory, and Regulatory Conflicts of Interest in Real Estate Transactions, 17 St. Mary’s L.J. 79 (1985).
Addresses conflict of interest questions in real estate practice and discusses not only when an attorney should refer his case to someone else but also when, even if a conflict is involved, situation dictates that he should keep it; details many different common roles of the real estate attorney and suggests ways to avoid ethical transgressions.
Schneyer, Ted, From Self-Regulation to Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. Tex. L. Rev. 639 (1994).
Submits that self-regulation is ineffective "when it comes to regulating banking lawyers in today’s political and economic climate," and details a potential alternative solution to it.
Shaffer, Thomas L., The Legal Ethics of Radical Individualism, 65 Tex. L. Rev. 963 (1987).
A colloquy on ethics that seeks to combine related ideas from formalized law, individual morals, and religious tenets.
Terrell, Buford C., When a Lawyer Needs a Lawyer: Representing Respondents in Disciplinary Actions, 29 S. Tex. L. Rev. 371 (1987).
Cites the rising occurrence of legal malpractice cases and urges lawyers accused of malpractice to seek outside legal assistance rather than trying to represent themselves.
Williams, Cherry D., Effective Advocacy in Federal Trials with Time Limitations--Federal Judges’ Practical Tips for Success. TADC Winter Meeting 1996. Max E. Wright, P.C., Midland, TX.
An extended list of--and suggested solutions to--common problems associated with the rules of timed trials.
