Professor Keith Swisher
University of Arizona
James E. Rogers College of Law

April 20, 2017 | Wesemann Hall
2:30 – 3:30 p.m. — Bench & Bar Lecture
4 – 5 p.m. — Public Lecture

BENCH & BAR LECTURE – The (Over) Use of Age and Custom in Legal Ethics

PUBLIC LECTURE – Conflicts of Interest as Second-Class Ethical Rules


The (Over) Use of Age and Custom in Legal Ethics
The influence of old and customary ways on legal ethics is ubiquitous. Like other humans, the members and regulators of the profession suffer from heuristics and biases—including the status quo bias. Unsurprisingly, those who resist a particular ethical application or ethical improvement in legal or judicial ethics often invoke tradition and preexisting practice as reasons against change; the ABA, courts, scholars, and lawyers have all done so in recent memory (and several examples will be explored during the Lecture). This older-is-better approach raises concerns because it may ignore or hamper the pursuit of excellence characteristic of professions. In addition to becoming and remaining competent in practice, lawyers and judges are supposed to seek the improvement of the law and the delivery of legal services. Moreover, although ethics of course incorporates and protects certain enduring principles (including deontological concepts), legal and judicial ethics as written or applied are subject to revision to correct previous errors or omissions and to account for the changed context, including new members and new types of practice. On the twentieth anniversary of the Tabor Lecture in Legal Ethics, this Lecture will explore whether a preoccupation with old and customary practices risks stunting and stagnating our ethical professional development.

Conflicts of Interest as Second-Class Ethical Rules
Historically, the system of lawyer regulation has been justifiably criticized for being both selective and ineffective. Recent evidence and rhetoric, however, suggest that the system has improved and is now less selective and more effective. This Lecture will explore whether and to what extent this general improvement holds true as applied to lawyers’ disqualifying conflicts of interest. Little a priori justification exists to ignore, or treat disparately, conflicts of interest. The legal profession has repeatedly declared its “core values,” which include exercising independent professional judgment, preserving confidences, and maintaining loyalty—defined in large part as the avoidance of conflicts of interest. Yet, previous works and anecdotal evidence indicate that conflict-of-interest rules are un- or under-enforced (vis-à-vis other ethical rules), and very few lawyers have been disciplined for even published violations of the conflicts rules (in disqualification decisions). This Lecture will shed new light on conflicts of interest in litigation, the lawyer disciplinary system, and their troubled intersection. To the extent that the disciplinary system has degenerated to its selective and ineffective roots when handling conflicts of interest, procedural and other curative measures will be raised, evaluated, and if promising, recommended.

Each of these lectures has been approved for one hour of Ethics Credit by the Indiana Commission for Continuing Legal Education.

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