Professional Responsibility


Defensible Ethics: A Proposal to Revise the ABA Model Rules for Criminal Defense Lawyer-Authors

Ria A. Tabacco

This Note identifies ethical issues raised when criminal defense lawyers write non- fiction books about their clients, and it proposes new ethical rules that shift the balance of interests to weigh more heavily in favor of the client. Two principal ethical considerations arise for lawyers who write books about their clients. First, lawyer-authored publications may cause the attorney-client privilege to be waived and may result in adverse legal consequences for the client. Even where legal consequences do not inure, however, publication may violate the lawyer’s duty of confidentiality, principles of client dignity and autonomy, or both. Second, the lawyer- author’s interest in the commercial viability of the client’s story may conflict with the defendant-client’s interests. This Note offers revisions to the American Bar Association (ABA) Model Rules of Professional Conduct that would impose a substantial waiting period before defense counsel may publish stories about their clients. The revisions strike a balance between the client’s interest in effective representation, the lawyer’s interest in self-promotion, and the public’s interest in a transparent criminal justice system.

Ethical Rules of Conduct in the Settlement of Mass Torts: A Proposal to Revise Rule 1.8(G)

Katherine Dirks

The American Bar Association’s widely adopted Model Rule 1.8(g) requires that attorneys handling aggregate settlements obtain the consent of each client before the settlement is finalized. This method is well suited to cases involving small-scale tort litigation with few parties, but Rule 1.8(g) does not meet the complex demands of mass torts, which can involve thousands of plaintiffs represented by a handful of law firms. Rule 1.8(g) creates a procedural obstacle to the efficient settlement of mass torts while obfuscating the ethical role of plaintiffs’ counsel in these settlements. This Note proposes a modified Rule 1.8(g), drawing upon a successful procedure used in asbestos bankruptcies. By incorporating these mechanisms from the Bankruptcy Code into the Model Rules of Professional Conduct, an alternative Rule 1.8(g) would reduce the costs of mass tort settlement, improve the clarity of the aggregate settlement rule, and protect clients from ethical misconduct by their attorneys.