Copyright (c) 2010 All rights reserved. http://works.bepress.com/grace_giesel Recent documents in Grace M. Giesel en-us Thu, 21 Jan 2010 03:24:00 PST 3600 http://works.bepress.com/grace_giesel/20 http://works.bepress.com/grace_giesel/20 Tue, 19 Jan 2010 11:07:52 PST Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/19 http://works.bepress.com/grace_giesel/19 Wed, 26 Mar 2008 11:47:54 PDT In the case of Brown v. Commonwealth, 226 S.W.3d 74 (Ky. 2007), the Kentucky Supreme Court has provided trial courts and lawyers, especially criminal lawyers, with some much needed ethical guidance. While the case itself was a criminal appeal, not an attorney discipline matter, the Court's opinion provides insight into the ethical sticky wicket of the proper conduct of the lawyer for a criminal defendant when the defendant intends to commit perjury. Such a situation pits the constitutional rights of criminal defendants against the ethical duties of defense counsel to act with candor to the court. Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/18 http://works.bepress.com/grace_giesel/18 Mon, 03 Mar 2008 08:31:18 PST Many are the court opinions stating that attorneys are agents of their clients. Traditional agency law allows principals to be responsible for actually and apparently authorized acts of an agent. Thus, one would expect courts to hold client principals responsible for authorized acts of agent attorneys. This article illustrates that some courts have exhibited significant reluctance to so hold, however. In the context of liability for torts such as abuse of process committed by attorney agents, some courts do not recognize traditional agency bases of client liability. Also, in the context of settlement, many courts do not apply traditional agency law in a traditional manner. Finally, in the context of waiver of the attorney-client privilege, some courts do not apply traditional agency principles. In each of these situations the courts deviate from traditional law to protect the client principal from liability that might otherwise occur as a result of the agency relationship. Courts appear troubled by viewing the relationship of lawyers and clients as a run-of-the-mill agency relationship. At the very least courts appear reluctant, in a paternalistic or maternalistic way, to hold a client responsible for an attorney's actions. This article concludes that such additional protection for clients is unnecessary in today's world of empowered clients. While there is no doubt that the relationship of attorney and client is a unique agency relationship, this relationship requires no special rules; the client neither deserves nor requires to be treated differently. Such a stance is more appropriate in today's environment in which user's of legal services are, in general, more sophisticated about the services provided by attorneys, and in many situations, intimately involved in the decisions made regarding the legal representation. Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/17 http://works.bepress.com/grace_giesel/17 Wed, 27 Feb 2008 07:36:05 PST Should Kentucky lawyers be required to report the misdeeds of other lawyers? Lawyers in forty-six states and the District of Columbia must report. Most of these jurisdictions have required lawyers to report the misdeeds of other lawyers since at least the 1970s. Until 1990 the ethics rules in effect in Kentucky required Kentucky lawyers to report the misdeeds of other lawyers. In contrast, the Kentucky Bar Association (KBA) Board of Governors has recommended to the Kentucky Supreme Court that it adopt an aspirational rule, not a rule requiring lawyers to report. Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/16 http://works.bepress.com/grace_giesel/16 Fri, 21 Sep 2007 07:35:35 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/15 http://works.bepress.com/grace_giesel/15 Fri, 21 Sep 2007 07:32:37 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/14 http://works.bepress.com/grace_giesel/14 Fri, 21 Sep 2007 07:30:26 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/13 http://works.bepress.com/grace_giesel/13 Fri, 14 Sep 2007 12:07:21 PDT Grace M. Giesel Contract Law http://works.bepress.com/grace_giesel/12 http://works.bepress.com/grace_giesel/12 Fri, 14 Sep 2007 12:04:17 PDT The corporate practice of law doctrine is illogical and out of step with the modern practice of law when the actual renderer of legal services is an attorney. This paper argues that conflict of interest rules and other rules of professional responsibiity should be used to regulate lawyer involvement in the corporate practice of law. The unauthorized practice of law corporate practice doctrine should be abandoned. Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/11 http://works.bepress.com/grace_giesel/11 Fri, 14 Sep 2007 11:51:59 PDT The issue of the enforceability of settlement agreements entered into by an attorney on behalf of a client is the subject of much confusing judicial comment. this article urges a return to traditional agency concepts. While not widely accepted in the United States, the position that retention of an attorney creates authority should be viewed as a logical and viable position not inconsistent with other rules of law or ethics. Grace M. Giesel Contract Law Professional Responsibility http://works.bepress.com/grace_giesel/10 http://works.bepress.com/grace_giesel/10 Fri, 14 Sep 2007 11:39:34 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/9 http://works.bepress.com/grace_giesel/9 Fri, 14 Sep 2007 11:35:43 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/8 http://works.bepress.com/grace_giesel/8 Fri, 14 Sep 2007 11:33:19 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/7 http://works.bepress.com/grace_giesel/7 Fri, 14 Sep 2007 11:31:19 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/6 http://works.bepress.com/grace_giesel/6 Fri, 14 Sep 2007 11:29:20 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/5 http://works.bepress.com/grace_giesel/5 Fri, 14 Sep 2007 11:26:31 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/4 http://works.bepress.com/grace_giesel/4 Fri, 14 Sep 2007 11:24:29 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/3 http://works.bepress.com/grace_giesel/3 Fri, 14 Sep 2007 11:22:41 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/2 http://works.bepress.com/grace_giesel/2 Fri, 14 Sep 2007 11:19:49 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/1 http://works.bepress.com/grace_giesel/1 Fri, 14 Sep 2007 07:52:26 PDT Fifty-seven years ago, the noted contracts scholar John P. Dawson stated: [T]he modern American law of duress reflects the convergence of several lines of growth, originally moving from sources quite distinct. The symptom of this convergence has been an increasing interplay and transfer of ideas. Its result has certainly not been a coherent body of doctrine, unified around some central proposition; on the contrary, the conflict and confusion in results of decided cases seems greater that ever before. John P. Dawson, Economic Duress--An Essay in Perspective, 45 Mich. L. Rev. 253, 288 (1947). Dawson's conclusion about "conflict and confusion" of results in actual cases remains true today. Even after the passage of half a century since Dawson's observations, the duress doctrine remains largely unusable, though courts frequently do attempt to use it. The time has come for a coherent and usable duress doctrine based on clear principles. To once more gain sight of the ultimate goal of justice, courts must abandon the practice of analyzing the presence or absence of free will to identify a situation of constrained choice. The "free will" test must be scrapped in favor of the more instrumental "no reasonable alternative" test. This test more appropriately determines whether a situation is one of substantially constrained choice. Use of such a test also will minimize the consideration of the contractor's decision-making capacity and will refocus attention on the constrained nature of the choice before even the most able contractor. In addition, courts must break free of the language of earlier courts and recognize that duress can be based on threats of crimes or torts, threats that are criminal or tortious, threats of criminal prosecution, threats of bad faith use of civil prosecution, and bad faith within an existing contractual relationship. Finally, any attempt to use the duress doctrine as a direct regulator of the substantive fairness of deals should be abandoned. Courts have rejected such a role in general and have rejected such a role for the duress doctrine even in the face of urging by commentators and the Restatement itself. Grace M. Giesel Contract Law Contract Law