Preface |
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v | |
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xvii | |
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xxxix | |
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li | |
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The Legal Profession: Background and Fundamental Issues |
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1 | (30) |
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1 | (1) |
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Development of the American Legal Profession |
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2 | (9) |
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Richard B. Morris, The Legal Profession in America on the Eve of the Revolution, in Harry W. Jones, Ed., Political Separation and Legal Continuity |
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4 | (3) |
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Robert Stevens, Democracy and the Legal Profession: Cautionary Notes |
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7 | (4) |
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The Development of Standards of Professional Conduct |
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11 | (3) |
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Some Contributions From Moral Philosophy to the Study of Legal Ethics |
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14 | (9) |
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The Ethics of Duty versus the Ethics of Aspiration |
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14 | (1) |
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Lon Fuller, The Morality of Law |
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14 | (2) |
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Moral People versus Moral Actions |
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16 | (2) |
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Role Ethics versus Common Ethical Standards |
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18 | (1) |
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Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues |
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18 | (1) |
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Gerald Postema, Moral Responsibility in Professional Ethics |
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19 | (1) |
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Consequential versus Deontological Standards |
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20 | (1) |
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21 | (1) |
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Personal versus Social Ethics |
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22 | (1) |
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The Matter of Professionalism |
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23 | (3) |
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26 | (2) |
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A Word on the Organization of this Book |
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28 | (3) |
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Regulation of the Legal Profession |
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31 | (53) |
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Problem 1: Admission to the Bar |
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32 | (1) |
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Character and fitness for admission to the bar |
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33 | (4) |
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Candor in the bar application process |
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37 | (3) |
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Educational and knowledge standards for admission to the bar |
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40 | (5) |
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Other attempts at state and federal limits on bar admission |
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45 | (1) |
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Problem 2: Lawyer Discipline and the Disabled Lawyer |
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46 | (1) |
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Conduct that can subject a lawyer to professional discipline |
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47 | (4) |
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Aggravating and mitigating factors in discipline cases; the problem of alcohol & drug abuse |
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51 | (3) |
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Interstate discipline: jurisdictions that may sanction and the law they apply |
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54 | (2) |
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The duty to report another lawyer's misconduct; the discipline process itself |
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56 | (8) |
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Problem 3: Regulating Lawyers Outside of the Formal Disciplinary System |
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64 | (2) |
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The standard of care and conduct in a malpractice action |
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66 | (6) |
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Proving a malpractice case |
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72 | (3) |
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Malpractice remedies; advance waivers of a lawyer's malpractice |
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75 | (4) |
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Other significant consequences of negligence or misconduct by lawyers |
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79 | (5) |
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Fundamentals of the Lawyer-Client Relationship |
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84 | (80) |
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Problem 4: Undertaking to Represent a Client |
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85 | (1) |
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The lawyer's duties to a prospective client |
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86 | (3) |
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The decision to represent a client |
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89 | (2) |
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Documenting the decision to undertake a representation |
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91 | (3) |
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Decision-making during representation---issues the lawyer is to decide and issues reserved to the client |
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94 | (4) |
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Problem 5: Billing for Legal Services |
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98 | (1) |
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The fee agreement between lawyer and client |
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99 | (4) |
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The requirement that a lawyer charge only a ``reasonable'' fee |
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103 | (4) |
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Special rules applicable to contingent fees |
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107 | (6) |
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The alternative of the hourly-rate fee |
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113 | (2) |
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Problem 6: Handling Client Property and Withdrawing From Representation |
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115 | (1) |
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116 | (5) |
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Withdrawal when the client becomes too difficult |
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121 | (3) |
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Limitations on a lawyer's efforts to collect a fee |
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124 | (4) |
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Attorneys' liens and other security interests |
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128 | (3) |
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Problem 7: The Duty of Confidentiality |
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131 | (1) |
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Information protected by the attorney-client privilege |
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132 | (4) |
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Information protected by work product immunity |
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136 | (2) |
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The lawyer's professional obligation of confidentiality |
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138 | (1) |
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How legal protection against disclosure can be lost |
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139 | (7) |
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Problem 8: Confidentiality and the Organization as a Client |
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146 | (1) |
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Privilege and confidentiality rules when the client is an organization |
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147 | (9) |
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The common interest privilege among multiple organizations |
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156 | (2) |
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Confidentiality and risks to public health and safety |
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158 | (3) |
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Confidentiality and client fraud---an introduction |
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161 | (3) |
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The Requirement of Loyalty to the Client |
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164 | (119) |
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Problem 9: Representing Multiple Parties Dealing With Each Other |
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165 | (1) |
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Determining whether a lawyer has a conflict of interest |
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165 | (2) |
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Waiver of a conflict of interest; the requirement of informed consent |
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167 | (2) |
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Conflicts for which consent is not effective |
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169 | (6) |
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Remedies other than professional discipline for a conflict of interest violation |
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175 | (2) |
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Problem 10: The Duty of Loyalty |
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177 | (1) |
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Taking a case against a current client |
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178 | (6) |
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Ascertaining who is a current client |
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184 | (5) |
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Firing a current client; the hot potato rule |
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189 | (4) |
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The problem of positional conflicts |
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193 | (3) |
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Problem 11: Conflicts of Interest in Criminal Litigation |
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196 | (1) |
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Limits on one lawyer's representing co-defendants in a criminal case |
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197 | (6) |
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The public interest in objecting to multiple representation |
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203 | (2) |
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Conflicts of interest faced by prosecutors |
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205 | (3) |
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Conflicts of interest of defense counsel; publication rights and social entanglements |
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208 | (2) |
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Problem 12: Conflicts Between Client Interests and the Lawyer's Personal Interest |
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210 | (1) |
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Accepting payment in the form of stock; business transactions with a client |
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211 | (4) |
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Using confidential client information to make private investments |
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215 | (2) |
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Accepting unsolicited gifts from happy clients |
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217 | (3) |
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Intimate relationships between lawyers and clients |
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220 | (3) |
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Problem 13: Representing the Insured and the Insurer |
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223 | (2) |
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A lawyer's client(s) when retained by an insurer to represent an insured |
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225 | (2) |
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A lawyer's obligation to protect confidential information of the insured |
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227 | (4) |
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A lawyer's duty at the time of a settlement offer in a third-party payment case |
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231 | (3) |
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Defining the appropriate level of effort when an insurer pays for the defense |
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234 | (4) |
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Problem 14: The Lawyer and Her Former Client |
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238 | (1) |
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Matters as to which disqualification is required |
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239 | (2) |
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Determining when matters are the ``same or substantially related'' |
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241 | (5) |
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Other situations in which Model Rule 1.9 may require disqualification |
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246 | (5) |
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Access to the work product of disqualified counsel |
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251 | (2) |
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Problem 15: Imputed Disqualification |
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253 | (1) |
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Imputation of conflicts throughout a law firm |
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254 | (3) |
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Persons and firms to which imputation will extend |
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257 | (4) |
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Imputation within lawyers' families |
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261 | (3) |
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The use of ``screening'' to avoid imputation |
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264 | (4) |
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Problem 16: Special Problems of Government Lawyers |
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268 | (1) |
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The rules applicable to former government lawyers |
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269 | (6) |
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The former private lawyer who enters government service |
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275 | (3) |
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Negotiating for post-government employment while still in government |
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278 | (2) |
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Conflicts of the former judge or third party neutral |
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280 | (3) |
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283 | (93) |
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Problem 17: The Lawyer for an Individual Client |
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284 | (1) |
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The difference between advice and advocacy |
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285 | (3) |
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Limits on the advice a lawyer may give |
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288 | (3) |
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The client suffering from diminished capacity |
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291 | (3) |
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The client who is likely to endanger others |
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294 | (3) |
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Problem 18: Advising the Business Corporation |
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297 | (1) |
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The client to whom a corporate lawyer owes primary loyalty |
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298 | (3) |
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Reporting corporate misconduct within and outside the client organization |
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301 | (2) |
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Lawyer liability for failure to take appropriate action |
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303 | (5) |
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Some special problems of counsel employed by the corporation |
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308 | (2) |
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Problem 19: Contact with Represented and Unrepresented Persons |
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310 | (1) |
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Contact with a represented opponent in general |
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311 | (5) |
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Special issues when dealing with officers and employees of an organization |
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316 | (3) |
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Interviewing client employees and other unrepresented persons |
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319 | (3) |
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The possibility that special rules apply to federal prosecutors |
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322 | (5) |
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Problem 20: The Ethics of Negotiation |
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327 | (1) |
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Authority to participate in and consummate negotiations |
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328 | (2) |
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The duty of honesty in negotiations |
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330 | (5) |
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The duty to volunteer information or correct a misapprehension |
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335 | (5) |
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Possible limits on the results that can be reached in negotiations |
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340 | (4) |
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Problem 21: The Lawyer as Evaluator |
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344 | (1) |
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Duties to a client who asks for a legal opinion |
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345 | (2) |
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Duties in preparation of a legal opinion for delivery to a third party |
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347 | (3) |
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Special problems responding to an auditor's request for information |
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350 | (4) |
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Lawyer liability for an inaccurate opinion |
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354 | (6) |
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Problem 22: Obligations When the Client May Be Engaged in Fraud |
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360 | (1) |
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Disclosure of a client's intended crime or fraud |
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361 | (4) |
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The special obligations of a securities lawyer |
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365 | (6) |
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Specific ABA and SEC responses to a series of corporate failures |
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371 | (3) |
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Special issues of disclosure by a government lawyer |
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374 | (2) |
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Ethical Problems in Litigation |
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376 | (136) |
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Problem 23: The Decision to File a Civil Suit |
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376 | (2) |
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Ethical Standards governing the filing of a civil action |
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378 | (7) |
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The ethical status of delay as a litigation tactic |
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385 | (3) |
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Consideration of ADR alternatives |
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388 | (2) |
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Other sanctions for litigation misconduct |
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390 | (5) |
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Problem 24: Litigation Tactics |
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395 | (1) |
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The ambiguous line between creative lawyering and deception |
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396 | (4) |
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Using deception in the search for truth |
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400 | (6) |
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Using an opponent's inadvertently disclosed confidential information |
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406 | (3) |
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Judicial efforts to enforce civility |
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409 | (3) |
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Problem 25: Disclosure of Law or Facts Favorable to the Other Side |
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412 | (1) |
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Candor about adverse legal authority |
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413 | (4) |
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Candor about adverse facts |
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417 | (5) |
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Candor about incomplete or inaccurate discovery responses |
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422 | (4) |
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Candor as to factual matters that are not easily verifiable |
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426 | (4) |
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Problem 26: Handling Physical Evidence |
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430 | (1) |
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Confidentiality of a client's identity |
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431 | (3) |
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Taking possession of physical evidence for testing or safekeeping |
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434 | (6) |
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Nondisclosure of physical evidence |
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440 | (3) |
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Destroying, or failing to retain, physical or documentary evidence |
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443 | (4) |
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Problem 27: The Client Who Intends to Commit Perjury |
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447 | (1) |
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Knowing when a lawyer knows something |
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447 | (4) |
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The decision to call a witness who may testify falsely |
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451 | (5) |
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The decision to call the defendant who may commit perjury |
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456 | (10) |
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What to do when the client does give false testimony |
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466 | (4) |
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Problem 28: The Verdict that May Be Tainted |
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470 | (1) |
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The ethics of contacting jurors after trial |
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471 | (1) |
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Contacting jurors before trial; compensation of witnesses |
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472 | (2) |
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474 | (4) |
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The lawyer as a witness at the client's trial |
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478 | (3) |
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Problem 29: The Crusading Prosecutor |
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481 | (1) |
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Media relations in modern litigation |
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482 | (8) |
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Standards governing a prosecutor's decision whether and what to charge |
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490 | (4) |
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Limits on prosecutors investigating defense attorneys |
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494 | (4) |
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Focusing on the fees of criminal defense counsel |
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498 | (5) |
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Problem 30: The Duty to See Justice Done |
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503 | (1) |
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Duties of a lawyer who learns an injustice may have been done |
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504 | (1) |
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Concerns about the reliability of results in our legal system |
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505 | (3) |
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The obligation, if any, to respond to concerns about an injustice |
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508 | (1) |
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Other conflicts between professional obligations and doing justice |
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509 | (3) |
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The Delivery of Legal Services |
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512 | (127) |
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Problem 31: Marketing Professional Services |
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513 | (2) |
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The constitutional context of the regulation of lawyer marketing |
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515 | (4) |
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When lawyer advertising becomes in-person solicitation |
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519 | (6) |
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Continuing issues in the field of lawyer advertising |
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525 | (5) |
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Continuing issues of in-person solicitation by lawyers |
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530 | (5) |
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Problem 32: The Ethics of Referral to a Specialist |
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535 | (1) |
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A lawyer's duty when a matter requires new skills or raises unfamiliar issues |
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536 | (1) |
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Calling a lawyer a ``specialist'' in one or more fields of practice |
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537 | (5) |
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Payment of a ``referral fee'' in a case such as this |
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542 | (3) |
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Alternatives to referral fees designed to achieve similar benefits |
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545 | (3) |
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Problem 33: Roles and Responsibilities in a Modern Law Firm |
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548 | (1) |
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The obligations of supervisory lawyers and those they supervise |
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549 | (4) |
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The rights of a lawyer who refuses to violate the law |
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553 | (3) |
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Some other legal rights of lawyers, as compared to employees generally |
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556 | (4) |
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Doubts about life in the modern large law firm |
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560 | (3) |
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Problem 34: Leaving One Law Firm and Forming Another |
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563 | (1) |
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The law and ethics of departing from a law firm |
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564 | (6) |
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Efforts by law firms to inhibit their lawyers' ability to leave |
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570 | (4) |
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Buying a lawyer's or law firm's practice |
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574 | (2) |
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Establishing a group legal services plan as part of a law firm |
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576 | (4) |
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Problem 35: The Duty to Work for No Compensation |
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580 | (1) |
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The moral obligation to provide pro bono legal services |
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581 | (2) |
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Efforts to translate a moral obligation into a legal requirement |
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583 | (2) |
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The tradition of accepting court appointment in a criminal case |
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585 | (5) |
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Other sources of funding for legal services to the poor |
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590 | (6) |
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Problem 36: Problems in Class Action Representation |
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596 | (1) |
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The use of publicity to find clients for a class action suit |
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597 | (2) |
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Possible conflicts of interest in class action cases |
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599 | (4) |
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Limitations on advancing funds needed to meet expenses of litigation |
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603 | (3) |
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Calculating fees for prevailing in a class action or civil rights case |
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606 | (9) |
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Problem 37: The Future of the Practice of Law: Unauthorized Practice, Multijurisdictional Practice, and Ancillary Legal Services |
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615 | (1) |
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The unauthorized practice of law |
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616 | (7) |
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The multijurisdictional practice of law |
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623 | (7) |
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Prohibition of the corporate practice of law |
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630 | (4) |
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Law firm delivery of ancillary, not-traditionally-legal services |
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634 | (5) |
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Ethical Conduct of Judges |
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639 | (52) |
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Problem 38: Judges' Disqualifying Conflicts of Interest |
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640 | (1) |
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Financial interests that may create disqualifying bias |
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641 | (5) |
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Financial Interests of the Judge's Family |
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646 | (3) |
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Bias arising from personal views rather than financial interest |
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649 | (7) |
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Waiving Judicial Disqualification |
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656 | (1) |
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Problem 39: The Judge as a Political Candidate and Public Figure |
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657 | (2) |
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The content of judicial campaign speech and activities |
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659 | (5) |
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Judges soliciting and receiving campaign contributions |
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664 | (2) |
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Lawyer criticism of judges |
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666 | (7) |
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The judge rewarding his friends |
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673 | (1) |
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Problem 40: The Active Federal Judge |
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674 | (1) |
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A judge's performance of official duties |
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675 | (7) |
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A judge's participation in non-judicial activities |
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682 | (3) |
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A judge's obligation to model proper behavior |
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685 | (2) |
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Special issues involving federal judges |
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687 | (4) |
Index |
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691 | |