American Bar Association Research Articles

Unguided: Social Media Usage in the Legal Profession and the Need for Practical Guidance

An unprecedented ethical dilemma currently faces the legal profession, how to ethically utilize social media. Lawyers who choose to utilize social media in their legal practice are not provided any ethical guidance on how to properly use social media. Specifically, there are currently no uniform guidelines for state bar examiners to emulate these guidelines from. Existing rules of professional conduct address competence, the duty of confidentiality, and legal advertising but none of these rules address the applicability of each topic to social media usage. Social media usage and the traditional practice of law require different rules, so it is inexcusable for lawyers to be instructed to apply existing rules to their ethical dilemmas. To illustrate the lack of guidance provided to lawyers, one can simply consult the guidance that judges, physicians, pharmacists, and nurses are provided regarding social media usage. To provide guidance that the legal profession desperately desires, the largest bar association in the United States, the American Bar Association (ABA), must create rules that address ethical social media usage and add them to the existing Model Rules of Professional Conduct. This can be accomplished by the ABA addressing competent social media usage, confidentiality when using social media, and using social media without violating advertising and solicitation rules. As a result, state bar regulators can be confident in the guidance provided by the ABA and adopt these rules in their jurisdictions, and legal practitioners will no longer face the ethical pitfalls that currently plague the profession.

Conflicts of Interest at an Organization's Highest Authority: How the District of Columbia's Rules of Professional Conduct Can Fail to Protect Private Organizations

This Article examines how the District of Columbia’s incomplete incorporation of the Model Rules of Professional Conduct into its own Rules of Professional Conduct has created a scenario in which wrongdoing inside a private organization can flourish. In 2002, following the Enron scandal, the American Bar Association (ABA) revisited and revised its Model Rules of Professional Conduct. The ABA nevertheless took a conservative route, rejecting rules long proposed by experts which would have permitted attorneys aware of corporate crimes, fraud, and other wrongdoing to report their concerns to individuals or entities outside the organization’s reporting structure. Additional scandals unfolded contemporaneous with the ABA’s revisions, instigating federal legislation, the Sarbanes-Oxley Act of 2002. Regulations promulgated under that Act included the reporting out opportunity long sought by ethics experts. In light of the new federal legislation, the ABA, in 2003, finally passed a revised Model Rule 1.13 which requires attorneys to report wrongdoing up the ladder to an organization’s highest authority and permits those attorneys to report out such wrongdoing in the event the highest authority failed to respond appropriately. Unfortunately, the District of Columbia did not heed these lessons. Citing antiquated notions of client confidentiality, the District adopted an approach which requires an attorney to report wrongdoing up the ladder but then fully accept the results of that reporting, even if the highest authority to whom the attorney reports the misconduct is the one engaging in the misconduct. In so doing, the District has created a structure which incentivizes the termination of ethical attorneys in order to cover up corporate wrongdoing. This Article recommends changes to the District of Columbia’s Rules of Professional Conduct which will enable the District to take the lead in promoting a bar committed to ethical conduct and appropriate corporate governance.

Keep Distance Education for Law Schools: Online Education, the Pandemic, and Access to Justice

While distance education made inroads throughout higher education, law schools kept their distance—until a global pandemic forced them all online for a time. Then the gatekeepers to the profession at the American Bar Association and state bars temporarily dropped their limits on distance learning. Now as American law schools prepare to return to normalcy, should distance learning remain an option? This essay argues that it should because it has potential to improve access to justice: distance education can reduce the costs of law school, increasing the supply of lawyers who can afford to provide less expensive legal services. Now is the time for legal regulators to make permanent what they allowed temporarily during the pandemic: distance-education-friendly accreditation and bar admission standards.

Discrimination as Anti-ethical: Achieving Systemic Change in Large Law Firms

As protests calling for racial justice erupted across the country in 2020, many large law firms issued statements acknowledging systemic inequities and bias. They had previously expressed their commitment to diversity, equity, and inclusion. Some had launched well-publicized diversity initiatives. Still, break-through progress has been elusive. Women, and women of color, continue to be severely underrepresented in partnership ranks. The gender pay gap at law firms persists. An unrelenting pattern of heavy burden in the lived experiences of women and women of color at law firms continues. Large law firms, on their own, have not been sufficiently incentivized to dismantle systemic discrimination and bias. And yet, they are allowed and trusted to proceed with barely any ethical oversight on issues of discrimination and bias in pay and promotion in a self-regulated profession. Sustained, pervasive change is needed. This Article takes leaders of large law firms at their word. It extends an invitation to advocate for state supreme courts, state bars, the American Bar Association, and state legislatures to move quickly to implement a new framework and bring about an ethical reset to eliminate systemic bias and discrimination in large law firms. With the gender pay gap in law firm partnership compensation as a vehicle, this Article explains precisely how the design of the rules of professional conduct renders them largely symbolic on discrimination and ineffective against longstanding systemic barriers. It proposes a framework requiring (1) transparency of process and pay; (2) regular self-assessment addressing milestones; and (3) a financial incentive for compliance. The framework can be used as a springboard to address other consequences of systemic discrimination in law firms, like the abysmal underrepresentation of women of color in law firm partnership ranks.

Safeguard or Barrier: An Empirical Examination of Bar Exam Cut Scores

In 2019 more than forty percent of aspiring law school graduates failed the bar exam. Nearly thirty thousand test-takers otherwise qualified to practice law were, given the score threshold required to pass the exam (the “cut score”), lost to the profession. Had the cut score been lower, many would now be lawyers. This exclusion disproportionately affects members of underrepresented and disadvantaged groups who stand to benefit most from entry into the legal profession. A common defense for retaining or raising cut scores is that doing so prevents lawyer malfeasance. But the bar exam is not designed for these purposes. This paper enters this scholarly and regulatory conversation by testing whether states’ bar exam scores predict lawyer misconduct. If they do not, it would remove one argument against lowering bar exam cut scores to promote diversity and growth of the legal profession. Using data comprising states’ bar exam cut scores and disciplinary records from the American Bar Association between 2013 and 2018, we employ statistical modeling to evaluate the relationship between cut scores and attorney discipline. We find no evidence that higher bar exam cut scores produce fewer complaints, charges, or disciplinary actions.

Access to Justice in Furtherance of Health

The health framework envisions the leveraging of and policy to advance racial and socioeconomic health equity. Health scholars have examined structures in need of legislative and policy reforms, both within healthcare and with regards to the social determinants of health. My article argues that access to is an under-examined and critical component of health justice. This country is plagued by a massive civil justice gap, documented extensively by the American Bar Association and just recently in a report by the American Academy of Arts and Sciences, through which individuals marginalized by virtue of race and socioeconomic status, go without legal information and representation needed to protect and enforce their rights in areas of civil legal need. The resulting under-enforcement of those rights leaves those individuals not only without access to justice, but also vulnerable to poor health. Unmet civil legal needs in the areas of housing, employment, public benefits, education, immigration, and domestic violence, for example, are all connected to well-documented social determinants of health that drive disparities. Those double burdened by virtue of race and socioeconomic status are both particularly vulnerable to the harms of lack of access to and to the chronic health conditions and lower life expectancy associated with health-harming legal needs. When a tenant walks into court for an eviction hearing alone and faces a landlord's attorney with years of experience, that tenant is unlikely to raise defenses such as unsafe conditions that violate the housing code or inadequate notice of the eviction. Without enforcement of her legal rights, the day that a marshal puts her furniture and her family out on the street, as health scholar Dayna Bowen Matthew has posited, the law on the streets does not reflect the law on the books. There is growing recognition that this misalignment is bad for the family's health, as housing insecurity and homelessness are associated with poor health and mental health, and can drive health disparities, particularly for double-burdened low-income communities of color. Just as the health movement is gaining momentum in the wake of a pandemic that laid bare racial and socioeconomic health disparities, the access to movement is advancing in its own right, with a wave of local and state right to counsel legislation, particularly in eviction cases, and access to federal efforts such as increased Legal Services Corporation funding and the recent restoration of the White House House Office of Legal Aid Interagency Roundtable and the U.S. Department of Justice Office for Access to Justice. I argue in this article that access to is a vehicle for health justice; similarly, access to efforts benefit from the health framework. Access to in furtherance of health should include the dissemination by lawyers of legal rights information to both affected communities and interprofessional collaborators, robust access to legal representation to enforce existing (and any newly gained) rights that implicate health, and collaboration by lawyers with affected communities to advance systemic reform efforts.

Antitrust-Compliant AI Industry Self-Regulation

The touchstone of antitrust compliance is competition. To be legally permissible, any industrial restraint on trade must have sufficient countervailing procompetitive justifications. Usually, anticompetitive horizontal agreements like boycotts (including a refusal to produce certain products) are per se illegal. The “learned professions,” including engineers, frequently engage in somewhat anticompetitive self-regulation through professional standards. These standards are not exempt from antitrust scrutiny. However, some Supreme Court opinions have nevertheless held that some forms of professional self-regulation that would otherwise receive per se condemnation could receive more preferential antitrust analysis under the “Rule of Reason.” This Rule weighs procompetitive and anticompetitive impacts to determine legality. To receive the rule-of-reason review, such professional self-regulation would need to: 1. Be promulgated by a professional body; 2. Not directly affect price or output level; and 3. Seek to correct some market failure, such as information asymmetry between professionals and their clients. Professional ethical standards promulgated by a professional body (i.e., comparable to the American Medical Association or American Bar Association) that prohibit members from building unsafe AI could plausibly meet all of these requirements. This paper does not argue that this would clearly win in court, or that such an agreement would be legal. Nor does it argue that it would survive rule-of-reason review.† It merely says that there exists a colorable argument for analyzing such an agreement under the Rule of Reason, rather than a per se rule. Thus, this could be a plausible route to an antitrust-compliant horizontal agreement to not engineer AI unsafely.

Ethical Duty to Investigate Your Client?

Lawyers have been implicated in corporate scandals and other client crimes or frauds all too often, and the complicity of some lawyers is troubling both to the public and to members of the legal profession. This is especially true when the crime involved is money laundering. As a response to attorney involvement in crimes or frauds, some legal commentators have called for changes to the ethics rules to require lawyers to investigate their clients and client transactions under some circumstances rather than remaining “consciously” or “willfully” blind to what may be illegal or fraudulent conduct. The commentators argue that such changes are needed because current ethics rules require proof of a lawyer’s actual knowledge of a client’s crime or fraud. It is surprising, then, that the American Bar Association Committee on Ethics and Professional Responsibility (CEPR) recently issued a formal ethics opinion holding that a duty to investigate currently exists in the ethics rules even though this is contrary to the plain text of the rules upon which the CEPR relied. In finding a duty to investigate, was the CEPR interpreting the ethics rules or was it legislating a new ethical duty? If it was interpreting the rules, is there substantial support for such an interpretation? If the CEPR was, in effect, legislating a new ethical duty, does it have the authority to do so? Regardless of whether the CEPR was interpreting the ethics rules or attempting to create a new duty under the ethics rules, should there be a duty to investigate? And, if there is to be a duty to investigate, how should it be structured and adopted? This Article explores these questions as it closely analyzes and evaluates the CEPR’s ethics opinion.

'The Presence of Justice': A Call to Expand the Humanitarian Exception in ABA Model Rule of Professional Conduct Rule 1.8(e).

“The Presence of Justice”: A Call to Expand the Humanitarian Exception in ABA Model Rule of Professional Conduct 1.8(e). This summer the American Bar Association amended Model Rule of Professional Conduct 1.8(e) to allow attorneys to give gifts to indigent pro bono clients. Although an important step that increases access to justice for the most vulnerable, it is too restrictive. People with meritorious claims but modest means are often forced out of the judicial system because they cannot afford basic necessities during protracted litigation. As states begin contemplating whether to adopt the new ABA amendment, this paper urges them to consider a broader humanitarian exception. Specifically, states should adopt a rule that allows attorneys to give or loan money to any existing litigation client in a financial emergency for basic necessities so that the client can withstand litigation. In support of this broader humanitarian exception, the paper initially establishes that it is the law profession’s responsibility to provide meaningful access to justice, and that this ideal is not being met. It then chronicles the history of Rule 1.8(e), pointing out that lawyer financial assistance for living expenses was allowed until the ABA ended the practice. It also categorizes the varying amendments to Rule 1.8(e) that a few states have adopted that allow attorneys to help clients stay in the system. It then highlights the problem of corporate defendants, mainly insurance companies, that draw out litigation because they have a financial incentive to do so, and why third-party consumer finance with its exorbitant interest rates and high fees is not a viable substitute for attorney financial assistance. Throughout the paper comparisons are made to other model rules of professional conduct that address similar, and often more severe, conflict concerns. These rules, which often benefit lawyers, regulate as opposed to ban the situation that could lead to a conflict. Thus, the proposed broader humanitarian exception regulates attorney financial assistance to clients for living expenses. It is based on state variations to Rule 1.8(e) and previous proposals by the drafters of the Restatement and Model Rules. It is limited to address conflict concerns but broad enough to allow practicing lawyers to follow their natural humanitarian instincts, fulfill their roles as protectors of all clients’ interests and of an equitable legal system, and not risk disciplinary action as many have, and would be willing to do, to help a client in need.

The DACA decision: Department of Homeland Security v. Regents of the University of California and its implications

The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications. The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands of beneficiaries. Some commentators noted, however, that the Supreme Court’s ruling it is not a major legal landmark—that it involves only the application of settled administrative-law principles. I largely agree with that view. Nonetheless, the decision’s administrative-law holdings are interesting, and the Court’s ruling contains several of what I view as “extras”—little nuances that may impact the law over time and that should interest administrative-law nerds.

Violations During the Pandemic of Law School Faculties’ Authority to Decide Methods of Instruction

During the pandemic, some universities have required as much “in person” teaching as possible everywhere on campus — including a university’s law school. Universities and their administrators who did this were wrong for three reasons. First, their fears that students would not enroll unless taught “in person” turned out to be unfounded. National postgraduate and professional school enrollment, including law school enrollment, actually increased even though almost half the country’s colleges and universities began the fall semester or quickly went primarily or entirely online. Second, these weren’t decisions about public health alone. They were also decisions about the quality of education. “In person” usually turned out to be an untested and primitive form of hybrid instruction that has no track record and has never been used on any scale before. During the pandemic the choice has never been between genuine “in person” teaching and online teaching. Public health concerns continually put some students online because of contagion risks. The real choice has been between fully online teaching (nobody in a classroom) and simultaneous hybrid teaching (some students in a classroom while others participate online). In many but not all situations, simultaneous hybrid teaching is demonstrably worse than fully online teaching. Third, university administrators who made unilateral decisions about methods of instruction violated basic rules on shared governance under the nationally authoritative 1966 AAUP Statement on Government of Colleges and Universities. The AAUP has already begun investigating some colleges and universities on this basis. And to the extent a university’s unilateral decisions included a law school, the university’s actions also violated the American Bar Association’s accreditation standards and the Association of American Law Schools’ Bylaws. A law school needs ABA accreditation for its graduates to take the bar exam, and nearly all law schools are AALS members. The ABA accreditation standards and AALS Bylaws combine to require that decisions about modality — modes of teaching — be made by a law school’s faculty, not by administrators elsewhere and imposed on the law school.

Older Adult Fatality Reviews: A Powerful Tool to Improve Policies, Protections, and Services

Older adult maltreatment is a serious problem that can hasten mortality and cause fatality. Child and Domestic Violence Fatality Review teams have made a major impact to improve protections, services, and system responses for victims. There are over 1300 child fatality review teams in 50 US states and 200 domestic violence fatality teams in 45 states. Older adult fatality reviews, in contrast, have not proliferated across the country, missing opportunities to bring interdisciplinary expertise together to resolve policy, protection, and services needed to prevent older adult premature deaths due to violence and abuse. Method: A mini mock review of a fatality of an older adult woman will demonstrate the possibilities of beginning Older Adult Fatality Review Board as recommended by the American Bar Association. Conclusion: Interdisciplinary older adult fatality review teams have been an underutilized tool to make changes in older adult mistreatment protection services and systems.

Genetic and Disability Discrimination During COVID-19.

Genetic and Disability Discrimination During COVID-19.

Attorney discipline, the quality of legal systems and economic growth within the United States

The quality of the legal system is of fundamental importance within any society, but the economics of attorney discipline (AD) have not been studied empirically. We rank states by AD resources, complaints, and convictions, and explore the impact of AD on economic growth. The American Bar Association’s annual Survey on Lawyer Discipline (SOLD) reports complaints and charges regarding lawyer misconduct, the caseload per disciplinary attorney, and each state’s budget for attorney discipline. We develop five measures of attorney discipline and a composite measure. We consider low levels of AD to indicate less effective legal systems. Since prior literature finds a relation between corruption and state economic growth, we assess the ability of our AD variables to explain growth, finding that states with lower levels of AD experience slower growth. To our knowledge, no other study has considered the SOLD data to evaluate the quality of attorney discipline, or its impact on growth. One implication is that legal ethics training adds value to society.

Toward Gender-Inclusive Postsecondary Data Collection

Many postsecondary datasets collect gender data in ways that are not inclusive of all students. Many trans* students, those who identify as trans women, trans men, genderqueer, among other gender identities, are excluded when surveys collect gender data using only two categories. The American Bar Association recently became the first sector of higher education to collect and report enrollment data using three gender categories for all U.S. law schools. Between 2014 and 2019, there was a steady rise in the number of law schools that reported enrolling students in the “other” gender category. We interpret this growth to signify that law schools are beginning to collect data on students who were already there, not a reflection of exponential growth in trans* enrollment in law school. A more inclusive approach to gender data collection is necessary to better understand the educational trajectories of trans* students. However, data collection alone is not sufficient and may in fact be problematic. Importantly, we encourage quantitative researchers to consider their role in processes of administrative violence—that is, the ways in which the use of discrete identity categories (such as male, female and/or other) can create barriers for trans* students as they access healthcare, student housing and campus services.

ABA Tax Section Submits Comments on Proposed Group Exemption Rules

The Section of Taxation of the American Bar Association, by letter dated September 9, submitted comments on the IRS's proposed substantial revisions of the group exemption rules (summarized in the July 2020 issue). This submission states the section's belief that the proposal “might create or exacerbate more difficulties than it ameliorates.” It is said that the proposal “would oblige both central organizations and their subordinates to comply with a number of requirements without increasing the central organization's ability to exercise oversight over the subordinates.” The proposal, the section writes, in some instances, “would make such oversight more difficult to exercise properly.” In the section's view, the proposal “also would increase the Service's caseload, with thousands of organizations submitting applications for [recognition of] exemption that would not otherwise have needed to do so.”

Toward A Critical Theory of Administrative Law

This contribution to a symposium on Racism in Administrative suggests that administrative law is missing a robust tradition of critical legal studies: https://www.yalejreg.com/nc/toward-a-critical-theory-of-administrative-law-by-bijal-shah/ (adapted for the American Bar Association, Administrative & Regulatory Law News (Summer 2020)).

Editor’s Introduction

Editor’s Introduction

Model Business Corporation Act Annotated (5th ed.) — Front Matter

The Corporate Laws Committee (CLC) of the Business Law Section of the American Bar Association promulgates the Model Business Corporation Act (Model Act), a free-standing, general corporation law that has been adopted by more than 30 states. The CLC is publishing the fifth edition of the Model Business Corporation Act Annotated (MBCAA5), a multi-volume work that presents the history, state-by-state codification, case-law, and scholarly analysis of the Model Act, as well as cognate provisions in non-Model Act states, such as Delaware. The CLC presents here the front matter to MBCAA5 in order to provide the academic community with insight into recent developments under the Model Act and the scope of MBCAA5.

Another Way to Skin the Cat? Perspectives on Using Section 2 to Challenge the Acquisition of Nascent Competitors

In the last year, various leaders at the Federal Trade Commission and the Antitrust Division of the Department of Justice have held out Section 2 of the Sherman Act as a vehicle for targeting acquisitions involving nascent competitors—including consummated mergers—that raise potential antitrust concerns. Three propositions, in particular, have invited controversy: (1) claims under Section 2 challenging the acquisition of a nascent competitor by a monopolist (or would-be monopolist) present a lower bar than Section 7 with respect to proving competitive effects and causation; (2) evidence of intent may be used as a proxy for probable harm; and (3) Section 2 may aid enforcers in challenging serial acquisitions—of targets with low market shares or start-ups outside of the acquirer’s primary market—on a course-of-conduct or “monopoly broth” theory. These three points merit careful discussion. In May 2020, the American Bar Association Section of Antitrust Law (“ABA”) hosted an important panel, entitled A Lesser Hurdle? Exploring Section 2 as Applied to Consummated Mergers, to discuss competing views on this topic. In a similar spirit, this paper summarizes the key arguments on the topic to date, drawing on both the ABA panel discussion and recent scholarship. Rather than attempt to resolve the debate here, we capture the key points on both sides of each controversy to serve as a departure point for future discussion.