American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

/pdf/current-index-to-legal-periodicals-8re353ze53.pdf

Current index to legal periodicals

Cette these est une etude comparee du droit francais et americain en matiere de lancement d’alertes. Le droit en matiere d’alertes est proteiforme : il englobe plusieurs regles, dont des dispositions en droit du travail, en droit civil, en droit penal, ou en droit disciplinaire interdisant des actes de retorsion a l’encontre des lanceurs d’alerte ; des dispositifs qui protegent la confidentialite ou l’anonymat des lanceurs d’alerte ; des devoirs d’alerter ; des restrictions au droit de reveler des informations sensibles ; des procedures obligatoires d’alerte ; ou encore des lois qui autorisent le paiement de recompenses financieres aux lanceurs d’alerte. En analysant les textes juridiques francais et americains en la matiere, cette these distingue deux grands modeles dans le domaine du droit d’alerte. Le premier, qui predomine en France, vise principalement la protection du droit fondamental du lanceur d’alerte a la liberte d’expression ; ce modele est egalement dominant au niveau du droit europeen. Le deuxieme modele, americain, est axe moins sur la protection du droit du lanceur d’alerte a la liberte d’expression, que sur le role de l’alerte dans la detection et la prevention des infractions. Cette these montre comment ces deux modeles influencent les choix legislatifs et jurisprudentiels francais et americains, se concretisant ainsi en regles de droit parfois similaires, parfois differentes

Le lancement d'alertes en droits français et américain

Efforts to reform the American health care system through direct government action have failed repeatedly. This article evaluates an alternative strategy that has emerged from these experiences: requiring insurance organizations and health care providers to disclose information to the public. Mandatory disclosure laws have become a focal point of current health care regulation, particularly as a response to the growth of managed care. The article traces the current popularity of disclosure laws to several developments, ranging from technical advances in health policy research to changes in social attitudes towards government. The article identifies four arguments for mandatory disclosure in health care, associates each with evolving trends in the law, and analyzes their implications for public policy. The article reveals that the most commonly articulated goal of disclosure laws, improving the efficiency of private purchasing decisions by giving purchasers complete information about price and quality, is the most complicated operationally. Other justifications for disclosure laws hold greater promise, but make different, sometimes conflicting assumptions about sources and uses of information. For example, using disclosure to ensure that intermediaries upon whom patients and consumers rely are in fact serving their interests suffers from potentially crippling ambiguities because agency relationships in health care are not limited to contractable matters. Similarly, public disclosure can stimulate innovation and improve the performance of the health care system in achieving organizational and national goals, but setting those goals implies influencing rather than honoring consumer preferences. Finally, although information can expose to democratic deliberation the social tradeoffs implicit in current health policy -- including public investment and procedural fairness -- the welfare consequences of transparency are indeterminate. The lessons that emerge from the article's analysis have implications not only for health care, but for other regulated practices and industries.

Regulating Through Information: Disclosure Laws and American Health Care

Conflict of Interest in Clinical Practice

The legal doctrine of informed consent has overwhelmingly failed to assure that the medical treatment patients get is the treatment patients want. This Article describes and defends an ongoing shift toward shared decision making processes incorporating the use of certified patient decision aids.

Certified Patient Decision Aids: Solving Persistent Problems with Informed Consent Law.

While mass torts were initially considered inappropriate for some forms of collective treatment, including class actions, a consensus has emerged calling for substantial modifications in traditional court processes in mass tort lawsuits, including the availability of the class action device. The early enthusiasm for the use of class actions in mass tort litigation has waned in the wake of numerous criticisms, including faulty incentive mechanisms for class action lawyers. Nevertheless, commentators continue to advocate the use of class actions and other collective mechanisms in mass tort lawsuits, urging the adoption of various reforms. Among the reform proposals are those focusing on lawyer ethics, rather than procedure. In particular, commentators urge flexibility in the application of ethical rules that appear to limit either the availability or efficacy of aggregate lawsuits, i.e., those in which individual lawyers or law firms represent numerous individuals whose claims arise out of the same incident or series of incidents. According to some of these commentators, the aggregation of individual claims, unlike class actions, involves the formation of consensual relationships between tort victims and their lawyers, thereby giving victims the ability to exercise more control than is possible in the class action context. While these commentators concede that group lawsuits are far from ideal, they claim they are better than either class actions or individual lawsuits, but only if various obstacles in the form of ethical rules are eliminated. This paper challenges the view that any widespread reform of traditional law ethics is either necessary or desirable. The author concludes first, that commentators label as "mass torts" too many cases in which the stated rationale for proposed special exemptions is totally lacking. Second, these commentators fail to recognize that the traditional rules are already more flexible than is often suggested and that t his flexibility can do much to accommodate the legitimate needs of clients. Finally, where existing rules do pose insurmountable obstacles to aggregate representation (including aggregate settlements), the author argues that the case has not yet been made that these rules should be changed in order to further facilitate collective action in mass tort litigation.

The Case Against Changing the Aggregate Settlement Rule in Mass Tort Lawsuits

/pdf/conflicts-of-interests-in-the-representation-of-children-3lb80nw6i8.pdf

Conflicts of Interests in the Representation of Children

Ethical issues arise frequently in class action litigation. These issues include conflicts of interest, solicitation, application of the no-contact rule, the reasonableness of attorneys' fees, and the attorney-witness rule. There has been considerable difficulty applying existing rules of conduct to these situations, partly because of confusion regarding the relationship among class counsel, the named class representatives and absent members of the class. Thus as to conflicts of interest - perhaps the most pressing problem facing class action lawyers - it has been said that a "strict reading of the conflict of interest rules in class actions should be tempered, because the very nature of a class action is to combine many divergent interests." Despite the frequency with which the propriety of lawyers' conduct is litigated in class action lawsuits, the Ethics 2000 Commission - which recently proposed comprehensive amendments to the ABA Model Rules of Professional Conduct - declined either to adopt a separate class action rule or to add extensive commentary addressing the application of the rules to class action lawsuits. The purpose of this article is to explain and defend the Commission's decision, focusing on the issue that dominates many discussions of ethics and class actions - the difficulty of applying current conflict-of-interest rules to the myriad of conflicting interests that commonly arise in these lawsuits, including conflicts among class members, as well as between the lawyer and the class and between the class and third persons. Parts I and II of the article demonstrate that the scope of the problem is not nearly as large as it is commonly thought to be. Part I argues that the class should be viewed as an entity client, in which case it becomes clear that conflict of interest rules simply do not apply to conflicts within a class. Part II eliminates from consideration those conflicts - like conflicts arising from the size of the lawyer's fee - that are not addressed by conflict-of-interest doctrine because they are not unique to particular lawyers but are rather a type of agency problem that is endemic to legal practice. Parts III and IV of the article then turn to the types of conflicts that would be addressed by a "strict reading" of the conflict-of-interest rules. These conflicts include those arising from the lawyer's duties to other current clients, both inside and outside the class, as well as former clients. Part III argues that from the point of view of the non-class client, there is no reason to relax the current conflict rules. These clients are entitled to full disclosure of the conflict and an opportunity to find independent counsel. Part IV addresses these conflicts from the point of view of the class itself. Here it is argued that relaxation (or special application) of the conflict rules may be warranted in some cases, but that it makes sense to leave these issues to be resolved under class action law - under the rubric of a further elaboration of the adequacy of representation requirement of Rule 23 of the Federal Rules of Civil Procedure - rather than by amendments to the rules of professional conduct.

/pdf/who-should-regulate-class-action-lawyers-1qu8hul7m4.pdf

Who Should Regulate Class Action Lawyers

The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes? A handful of lawyers have tried to do so as FCA qui tam relators. They have not yet succeeded, but several court decisions suggest that they might be able to do so under confidentiality exceptions to state ethics law, which several courts have held are not preempted by the FCA. No lawyer has been publicly identified as seeking a whistleblower reward under Dodd-Frank, perhaps because the program is young, but also because the SEC process for determining whistleblower eligibility is secret.This article is the first to conduct an in-depth analysis of several questions that are key to determining whether a lawyer may receive whistleblowing award under a federal program without violating state ethics law: 1) When may a lawyer disclose a client’s confidential information to others? 2) When does a lawyer’s obligation of loyalty preclude acting adversely to a client, including seeking personal benefit when engaging in conduct that is permissible for other purposes, such as to prevent or rectify harm to another? 3) Are any of a lawyer’s obligations under state law preempted by the federal law that provides for financial incentives for whistleblowers? 4) Which state’s law applies to lawyers who move from state to state as they work for national and international companies?These questions are enormously complex. State confidentiality exceptions differ widely among states, and contrary to the suggestions of recent court opinions, disclosure may not be “reasonably necessary” either to prevent the continuation of continuing crimes or frauds or to rectify or mitigate past wrongdoing. State loyalty obligations include not only conflict of interest rules for current and former clients, but also a lawyer’s common law fiduciary duty not to profit from a client’s confidential information. Although not yet identified by any court or commentator as a basis for excluding lawyers from seeking whistleblower rewards, this well-settled fiduciary duty is so broad that it may prohibit a lawyer from seeking a financial reward for disclosing client information without the client’s consent, even when the targeted company is a third-party non-client about whom the lawyer acquired information while representing a client.In view of the potential breadth of a lawyer’s confidentiality and loyalty obligations, which has yet to be acknowledged, the federal preemption question is an important one. Given the complexity of the issues, we do not purport to suggest the final answer, but we do briefly address the central questions that should be raised with respect to the preemption of state law by the FCA, which poses more problems in this regard than does Dodd-Frank. Most significantly, we question the analysis of several recent federal court decisions, including a Second Circuit decision, that concluded without much discussion that the FCA does not preempt a lawyer’s state law obligations. None of these courts confronted the fact that federal courts in FCA cases involving nonlawyer-relators have apparently preempted the state law fiduciary or contractual duties of these individuals in situations where enforcing these obligations could effectively prevent most company insiders from serving as FCA relators. We suggest ways in which lawyer-relators might be distinguished from nonlawyer-relators, but it is unclear whether federal courts will accept this distinction. We also question the analysis of recent federal court decisions in determining the choice of law rule that federal courts should apply in deciding which state’s ethics law applies when there are several states with significant contacts with the matter.We conclude with a summary of our findings and a caveat concerning the wisdom of Dodd-Frank’s secret process for granting whistleblower awards.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2562610_code1659550.pdf?abstractid=2562610&mirid=1

Financial Rewards for Whistleblowing Lawyers

Nancy J. Moore* I. Introduction In recent years, the subject of conflicts of interest has grown exponentially in importance to both practicing lawyers and academics.1 It is now one of the most litigated areas of professional responsibility, with impermissible conflicts being raised as a basis for such diverse remedies as civil damages, disqualification, and fee forfeiture, as well as for the more traditional remedy of professional discipline.2 Not surprisingly, with this increased judicial attention, an enormous body of secondary literature has evolved, describing and grappling with various aspects of complex conflicts doctrine.3 Until very recently, however, very little attention has been paid to the conflicts raised by third-party representation, that is, representation in which the lawyer is paid or otherwise furnished by someone other than the client. An important exception is insurance defense representation, where there are numerous decisions and scholarly articles attempting to delineate the rights and responsibilities involved in the so-called "tripartite relationship" between the insurer, the insured, and the lawyer retained by the insurer to defend an action brought against the insured.4 Even here, most lawyers and law professors have tended to view the problems of insurance defense representation as marginal to the central problems of professional responsibility. Thus, the casebooks in the field devote very little attention to third-party representation, except perhaps for a case or two on insurance defense, with little or no attention to the implications of these cases for other, more common instances of third-party representation.5 These more common instances include cases involving lawyers hired by an employer to represent an employee6 and lawyers hired by parents to represent their children,7 as well as public interest lawyers paid for by the government or by nonprofit organizations to represent individuals in both civil and criminal cases.8 This situation changed in May 1996, when a section on thirdparty conflicts, Section 215, was one of only two sections of the proposed Restatement (Third) of the Law Governing Lawyers to fail to be approved by the membership of the American Law Institute.9 Admittedly, the failure to obtain approval was a direct result of unhappiness with the Section among the insurance defense bar,10 which takes a strong position on questions that have been debated in the literature for a considerable period of time.11 However, what is striking about the debate surrounding Section 215 of the Restatement is that the debate encompasses not only statements in the Comment directed explicitly to the situation of insurance defense lawyers,12 but also the text of the rule itself, which appears to significantly modify provisions regulating third-party conflicts under modern ethics codes, particularly the Model Rules of Professional Responsibility.1 And of course, any such changes in the blackletter rule itself are going to affect both insurance defense representation and other types of third-party representation. Indeed, one of the parting comments by an ALI member before the Section was recommitted to the Reporters was an observation concerning the implications of the Section for those lawyers representing indigent clients and the extent to which those lawyers were facing cost containment pressures similar to those experienced by the insurance defense bar; the ALI member reminded the Reporters that the issues raised in this Section are not just about lawyers who happen to be paid by insurance companies.14 It is the contention of this Article that the legal doctrine concerning the ethics of third-party representation is very much in its infancy and that neither the judiciary nor the profession itself has seriously confronted some of the important dilemmas commonly presented when a lawyer is paid or otherwise provided by a nonclient third party.15 These dilemmas include the sharing of otherwise confidential information, the ability of the third-party payer to direct at least some aspects of the representation, and questions concerning the "non-consentability"16 of some instances of third-party representation. …

Nancy J. Moore

Papers

The Case Against Changing the Aggregate Settlement Rule in Mass Tort Lawsuits

Conflicts of Interests in the Representation of Children

Who Should Regulate Class Action Lawyers

Financial Rewards for Whistleblowing Lawyers

Ethical Issues in Third-Party Payment: Beyond the Insurance Defense Paradigm