State Bar Research Articles

Women in Legal Governance: A Comparative Analysis of Female Participation and Advancement in the Legal Profession in Japan and India

The social advancement of women in the legal field is a critical indicator of societal modernisation. Despite the progress made globally in the pursuit of gender equality, there are still substantial disparities, particularly in Asian countries such as India and Japan. In this article, the participation and advancement of female legal professionals in these two nations are analysed, with a particular emphasis on the persistent gender disparity and the influence of cultural and institutional barriers on their professional development. The study employs a comparative analysis using data from the White Paper on Lawyers published by the Japan Federation of Bar Associations, alongside statistical data from Indian state bar councils. Findings indicate a significant disparity in the level of female counsel participation between Japan and India. The proportion of female lawyers in India was less than 11% of the total legal professionals in 2010, a figure that increased marginally to 15% by 2020. The study reveals that in order to address the gender disparity in the legal profession, it is imperative that both Japan and India take proactive measures. This study contributes to the limited corpus of comparative research on female legal professionals in Asian countries. The study provides a nuanced comprehension of the socio-legal dynamics that influence women’s advancement in the legal profession by contrasting the legal landscapes of Japan and India. It urges a joint endeavour to achieve gender equality, underscoring the importance of data-driven policies in the development of an inclusive legal environment.

Performance of OpenAI’s GPT-4 in a mock MRCS Part A Examination

Introduction: OpenAI’s latest iteration of a Large Language Model (LLM); GPT-4 (Generative Pre-trained Transformer 4) has demonstrated its proficiency against various professional examination standards like the USMLE (United States Medical Licensing Examination), FRCS (Fellowship of the Royal Colleges of Surgeons) and the United States Bar. However, GPT-4’s capability with the MRCS (Membership of the Royal College of Surgeons) Part A has not yet been investigated. Methodology: A representative MRCS Part A examination that was prepared and provided by “TeachMeSurgery” based on the MRCS Intercollegiate Curriculum was used to assess GPT-4's performance. Each question was processed via the web-based interface of ChatGPT (Chat Generative Pre-trained Transformer) Plus. Results: GPT-4 scored 87.2% on Applied Basic Sciences (157/180) and 86.7% on Principles of Surgery in General (104/120 questions), achieving an overall score of 261/300 (87%), which is above the typical passing threshold. GPT-4 scored 100% in four out of the eleven predefined curriculum areas, which included: Pharmacology, Microbiology, Data Interpretation and Audit, and The Surgical Care of Children. GPT-4’s weakest performance was in the Medico-Legal Aspects of Surgical Practice, in which it scored 33.3%. Conclusion: GPT-4 successfully passed the mock MRCS Part A without any specialised preparatory training, however further research could look at integrating the GPT-4 model to enhance a trainee surgeon’s learning and use it as an effective tool to deliver high quality & efficient patient care.

Examining the trajectory of relational conflict leading up to and after an anticipated stressor

AbstractA wealth of research suggests that as stress increases, so does conflict in close relationships. But is this always the case? Specifically, how does the trajectory of conflict unfold in the period before and after an acute and anticipated major life stressor? We capitalize on a 44‐day dyadic diary where one partner was preparing for the New York State Bar Exam (N = 312 couples) to explore the trajectory of conflict leading up to the exam, as well as how these patterns differed once exams finished. Results revealed that examinees and partners reported statistically meaningful decreases in conflict as exams approached, which contrasts prior research. This was followed by a spike in the likelihood of conflict immediately after exams were finished, and a quick return to low likelihoods of conflict one week after exams. This work highlights how couples, even in the face of stress, regulate their emotions and engage in relationship maintenance processes. However, relationship frustrations tend to be expressed—resulting in conflict—once the stressor is over. Not only does this work inform theories about relational conflict during times of stress, but it also highlights the need to study the dynamics of stress before, during, and after meaningful life events.

Cybersecurity in international commercial arbitration (Legal vision)

Attracting foreign investment requires assurances from states to safeguard against infringements and losses. Arbitration serves as a crucial factor in enticing investors. However, for arbitration to be effective, ensuring information security is imperative. Maintaining confidentiality and preventing disclosure are vital, yet they pose challenges. International experiences indicate that companies might accept unjust settlements to prevent revealing their trade secrets. To tackle these obstacles, various arbitration bodies have endeavored to establish legal mechanisms for ensuring information security. This involves targeting individuals involved in arbitration proceedings and enhancing technical infrastructure. For instance, the International Council for Arbitration (ICCA), in collaboration with the New York State Bar Association (NYSBA) and the International Institute for Conflict Prevention and Resolution (CPR), devised an Electronic Security Protocol for Commercial Arbitration. These initiatives aim to shield participants in international commercial arbitration from the risks of divulging sensitive information due to breaches in information security. The protocol offers a framework of guidelines for arbitrators and parties on safeguarding confidential information throughout the arbitration process. It encompasses aspects like confidentiality agreements, data protection, access control, security measures for electronic devices and data, and procedures for handling incidents. By adhering to these guidelines, arbitrators and parties can uphold the protection of confidential information, thus ensuring that international commercial arbitration remains a secure platform for dispute resolution.

Recovering Hiram Chase

Hiram Chase III (1861-1928) was an Omaha Indian and the first Native person to pass the Nebraska State Bar in 1889....This paper examines Chase's speech to the 1911 Convention of the Society of American Indians and prints and comments on two brief, previously unpublished biographical notes of Chase by his sons, Hiram IV and Kenneth Chase.

Использование инструментов стратегического моделирования для оценки влияния инициатив государства на адвокатуру. Часть 1 «Три горизонта роста»

This article considers the possibility of applying one of the strategic modelling tools to assess the impact of government initiatives on advocacy. As such, the author proposes an adapted “Three Horizons” model proposed for the development of commercial organizations by McKinsey. Based on the analysis of the state initiatives in recent years, the conclusion is made about two possible vectors of development of the legal profession: the creation of commercial law entities and the creation of the state bar. Using an adapted “Three Horizons of Growth” model, the author suggests that the state could simultaneously implement the two proposed concepts while aiming at creating a stateowned legal profession. The author’s application of the adapted “Three Horizons of Growth” model to evaluate public policy has not previously been seen before.

On the question of professional ethics of lawyers: the american model

A lawyer is a specialist who not only has a higher legal education, but also a lawyer who is called to perform the tasks of providing legal assistance to society in all areas of its life. The essence, content and direction of the lawyer’s activity aredetermined by his main goal - the protection of the rights, freedoms and legitimate interests of the person, society and its institutions (including the state) with the help of tools for effective, competent and high-quality legal assistance.Ethics and professional responsibility are key foundations of the legal profession. Being a lawyer means holding yourself to higher standards. Members of the public must trust that lawyers will handle their case with the highest level of skill and with the highest level of attention to ethical principles. Legal ethics is a set of rules of professional behavior of practicing lawyers. These rules focus on regulating the behavior of lawyers in all aspects of legal practice, including relations with clients, the courtand third parties. The aims and legitimate purpose of these rules are to ensure the integrity of the legal profession and to define the duties of the lawyer as a representative of the client, as an official of the legal system and as a citizen who has a special responsibility for the quality of justice.
 The standards and requirements of legal ethics derive from a combination of statutory provisions and norms that are widespread in the legal profession. Thus, the American Bar Association’s Model Rules of Professional Conduct, state courtdirectives, state bar association instructions, and ethics experts’ opinions are among the sources of legal ethics.Despite the fact that there is broad uniformity among states regarding legal ethics, the specifics of the rules of professional conduct are determined by each jurisdiction separately.The study of the regulation of the ethical behavior of lawyers in the context of American legislation is valuable and relevant for the legal science of the constitutional law of Ukraine and the conduct of further comparative legal characteristics of the activities of highly competent, professional and fair lawyers.

Criminal history inquiries and minority threat in the legal profession: An analysis of law school and state bar admission applications

While all but one U.S. law school and every state bar ask about criminal history on their admissions application, such inquiries vary considerably in the depth of information sought. One potential explanation for variations in the depth of criminal history inquiries among law schools and state bars relates to minority threat dynamics. Drawing on data quantifying the depth of criminal history inquiries for 190 ABA-approved law schools and all state bars, as well as school and state demographics, this study explores the issue for the first time. Negative binomial regressions reveal that law schools and state bars located in states with larger Black and Latino populations employ more probing criminal history inquiries. We also find that this relationship is parabolic – where the minority threat effect is negative in states with a critical mass of Black/Latino residents. Finally, minority threat effects for law school criminal history inquiries are moderated by state bar criminal history inquiries, suggesting that law schools are cued by state bar policies. These results provide some support for minority threat theory, informing debates about the continued use of criminal history inquiries to screen prospective law students and lawyers, and the inclusiveness of the legal profession generally. This article is protected by copyright. All rights reserved.

Abrogation of State Sovereign Immunity in Kohn v. State Bar of California

Abrogation of State Sovereign Immunity in Kohn v. State Bar of California

Letter to the Editor

I write following my reading with great interest the published article “Physicians and Cognitive Decline: A Challenge for State Medical Boards,” in the Journal of Medical Regulation.1I express my opinion based on my own personal experience as an active practicing physician for 47 years across several states.I agree with the article’s author that “older physicians benefit from their many years of experience and the skills they have developed over decades of practice…,” but feel that the use of the generalization that these physicians “may be at risk of cognitive decline, with job performance deficits…,” may be biased and inaccurate. Such a conclusion could raise concern as not based on significant statistical facts and/or factual finding.We cannot and should not generalize, otherwise our opinions become skewed and invalid.State Medical Boards and Peer Review Boards have their own internal review procedures for checks and balances. They are the regulatory and monitoring authorities overseeing physician performance practices, treatment outcomes, physician patient satisfaction, medical errors, negligence, reporting of patient loss, including outcome of claims litigation.2,3,4Having an outside source beyond internal affairs of State Medical Boards and Peer Review Boards mingle and interfere with their internal and intrinsic procedures, proceedings, legislation, and medical staff by-laws seems like an intrusion by telling assigned medical organizations how to oversee, regulate, and proceed in these matters that are akin to physicians telling state bars how to regulate their member lawyers.2,4,6State Medical Boards do identify, monitor, and pursue physicians who show cognitive decline. These bodies already do a good amount of regulating and overseeing of Quality Assurance, as is the case of the Medical Board of California, following their legal state mandate and ethical obligation to the public and its trust.7Many State Medical Boards and Medical Associations have adopted certain methodology to establish such programs. They also have the wisdom to screen and monitor physicians to establish such programs, and the wisdom to screen and monitor physicians’ late impairment through specific Medical Specialty Tests and comprehensive follow-up tests to best identify any such issues.2,4,6There is no set or agreed upon age when such physicians’ testing program should commence. Due process and its protections are paramount for the process of identifying physician impairment and performance below the standard of care, so that the process can be fair, reasonable, and equitable to all.State medical societies already institute public relations campaigns geared to build support among clinicians and other professional medical organizations, as its relevance also applies to State Medical Boards, who are tasked with regulating and overseeing medical and health care providers as well.5Cognitive decline is not exclusively or only inherent to medical practitioners. It also applies to all in the work force, across the board. The dos and the don’ts are ultimately a matter of due process and the law.Given the current physician shortage crisis we are facing in the US, along with the demographic trends, more primary care providers are likely to be needed to meet the increasing needs of the older population, and the need to avoid forced early retirement of aging, elder physicians in this country.5Ultimately, competence rather than mandatory retirement due to age per se should be the deciding factor regarding whether physicians should be able to continue their practice.4Physicians recognize that they are not alone, and the visible leadership by influential national organizations and accrediting bodies (eg, National Academy of Medicine, American Medical Association, Association of American Medical Colleges, Accreditation Council for Graduate Medical Education, the Joint Commission, American College of Physicians, Accreditation Council for Continuing Medical Education) engaging regulators, payers, and other organizations may provide optimism for meaningful change.Respectfully Submitted,Isaac E. Jakubowicz, MD, MPHBeverly Hills, CAgreatpediatrician@yahoo.com

Post-pandemic Recommendations: COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup

In this report, the COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup (Plan B Workgroup) makes recommendations about best practices and technologies that should be retained or adapted post-pandemic. The recommendations in this final Plan B Workgroup whitepaper are based on experience and feedback from Arizona’s courts addressing pandemic and post-pandemic practices. Although the original report, issued on June 2, 2021, included a May 2021 Survey of Arizona’s Courts, this updated report also includes information from a July 2021 State Bar of Arizona Survey and a September 2021 State of Arizona Public Opinion Survey addressing those practices. The workgroup’s findings and recommendations, which remain unchanged, can be summarized in five major categories: (1) Increasing Access to Justice, (2) Expanding Use of Technology, (3) Jury and Trial Management, (4) Communication Strategies and Disaster Preparedness, and (5) Health, Safety, and Security Protocols.

Selected Developments in Biotechnology Law and the Biotechnology Industry

Selected Developments in Biotechnology Law and the Biotechnology Industry

Protecting the Public's Health in Pandemics: Reflections on Policy Deliberation and the Role of Civil Society in Democracy.

The COVID-19 pandemic (“the pandemic”) has magnified the critical importance of public policy deliberation in public health emergency circumstances when normal health care operations are disrupted, and crisis conditions prevail. Adopting the lens of syndemic theory, the disproportionate impact of the pandemic on vulnerable older adults suggests that the pandemic has heightened pre-existing precarities and racial inequities across diverse older adult populations, underlining the urgency of needed policy reforms. While the pandemic has called attention to systemic failures in U.S. public health emergency planning at both federal and state levels of government, the important role of civil society in influencing policy decision making and advocating for legal and ethics reforms and social change in a democracy calls for more open dialogue in aging, public health and legal communities and constituencies. To foster this dialogue, one public health lawyer, who is also a bioethicist and gerontological social work researcher and served as chair of the New York State Bar Association Health Law Section COVID Task Force in 2020 (“Task Force”), shares her first-person perspectives on the process of leading the development of a statewide bar's recommendations for policy reforms, including the challenges and conflicts encountered. A hospital-based attorney and clinical bioethicist brings a clinical ethics perspective to the discussions. This first-person contribution discusses the power of constituencies to influence policy deliberation in a democracy, and the implications of the Task Force recommendations for future aging and public health policy, particularly in view of the high suffering burdens and trauma older persons and older people of color have borne during the pandemic.

Distributive Justice as a Means of Combating Systemic Racism in Healthcare

Distributive Justice as a Means of Combating Systemic Racism in Healthcare

New Aba Guidance on the Ethics of Working Remotely

On March 10, 2021, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion 498, which contains timely guidance on ethical issues specific to working remotely, which many lawyers have found themselves doing during the Coronavirus Pandemic. ABA Ethics Opinion 498 outlines ethical issues specific to remote law practice, including lawyers’ ethical duties of competence, confidentiality and supervision, which are imposed by Rules 1.1, 1.6, 5.1 and 5.3 of the ABA Model Rules of Professional Responsibility. The new ethics opinion actually contains a relatively modest amount of new information, and synthesizes principles which have been articulated by both the ABA and state bar ethics committees over the past several years, including New York County Lawyers Association Formal Opinion 754-2020 and California State Bar Formal Opinion No. 2020-203, both of which provide helpful guidance for lawyers seeking to maintain traditional ethical values of confidentiality and competence in an era of rapid technological change. As will be seen, the concept of professional competence increasingly encompasses technological know-how. Twenty-First century technology is quite literally becoming mandatory training for lawyers

Control Transaction Governance Collective Action and Asymmetric Information Problems and Ex post Judicial Policing

Why, when and how should control transactions be policed ex post and by a judiciary? This article is the first to 1) articulate the doctrinal prerequisites for effective ex post judicial policing of fiduciaries in control transactions, and 2) theoretically unify two seemingly distinct approaches to police control transactions: the ex post judicial policing in the United States and the ex ante policing by the Takeover Panel in the United Kingdom. Shareholder collective action and asymmetric information problems, and the extent of gatekeeping by fiduciaries together determine the mode of third-party interventions, such as those by judiciaries and the Takeover Panel, in control transactions. The Article’s analysis yields normative conclusions about how judiciaries in the United States, including Delaware’s, should fine-tune gatekeeping by corporate fiduciaries in control transactions. It predicts that multijurisdictional shareholder litigation that seeks anticipatory adjudication will produce negative consequences. Further, it gives policy makers outside of the United States the theoretical foundation for crafting third-party interventions in both types of control transactions, i.e., third-party acquisitions of control and controller freeze-outs, that are optimal for their own jurisdictions. * Kenju Watanabe is a member of the New York State Bar Association. He was a partner at Skadden, Arps, Slate, Meagher & Flom LLP and Paul Hastings LLP focusing on M&As and a visiting scholar at Columbia Law School (2012–14). I wish to first thank Professor Curtis J. Milhaupt for his generosity and invaluable advice throughout the process of writing this paper and Professor Hideki Kanda who, among others, kindly introduced me to Professor Milhaupt. I also thank Professors Harry First and Charles Whitehead, who took interests in this project in its early stages and Professor Peter Mulbert, who, among others, very generously shared his European perspectives. I had conversations with Professor Michael Halberstam, who stresses the importance of civil procedure for corporate governance and has continued interests in this project. For helpful comments on prior drafts and discussion, I am equally grateful to other academics and practitioners, including William Allen, Thomas Allingham, John Armour, Steve Banker, Ed Duffy, Peter Halasz, Koichi Hamada, Takeo Inaba, Hajime Kanagawa, Shin Kikuchi, Etsuro Kuronuma, Hatsuru Morita, Hisashi Ohgaki, Kenichi Osugi, Maria Isabel Saez, Katsuhisa Shimbo, Toshihiko Shimizu, Masakazu Shirai, Wataru Tanaka, Akira Tokutsu, Hiroyuki Watanabe, Noriyuki Yanagawa, and Mitsuhiro Yasuda. Errors in this paper are all mine. The law firms of which the author was a member played roles in some of the cases cited in this paper. DOCUMENT1 (DO NOT DELETE) 2/10/2016 10:35 PM Northwestern Journal of International Law & Business 36:45 (2016)

Do We Need a Bar Exam... for Experienced Lawyers?

The fierce determination to require a bar exam during the COVID-19 pandemic left quite an impression on new lawyers entering the profession. State bars and state supreme courts made their position clear: the bar exam provides a screening function necessary to safeguard the public. Many disagreed.Even a cursory look at attorney discipline reveals that the lawyers who get into disciplinary trouble are not mostly new lawyers. The lawyers who get into trouble tend to be more experienced lawyers, who have not had any formal or objective tests of their ability to function since their original bar exam pass. The only check on their performance is discipline after harm has been done.Regulators deem the bar exam and character and fitness as necessary tests at the entry gate to the profession. As I contend in this Article, however, evidence supports regular administration of these tests throughout lawyer careers, not just at the beginning. I challenge the profession to consider whether the entirety of the current regime for assuring lawyer competency and quality can be improved to serve the public.

Gordon v. State Bar of California: Test Takers with Disabilities Sue State Bar of California for Forcing Them to Test In-Person During the COVID-19 Pandemic.

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A BETTER WAY

A BETTER WAY

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.