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St. Mary's Journal on Legal Malpractice & Ethics

First Page

290

Date Created

7-2020

Publisher

St. Mary's University School of Law

Editor

Robert W. Derner

Last Page

340

Abstract

Ethical concerns arise when lawyers openly carry firearms to adversarial meetings related to representation, such as depositions and settlement negotiations. Visible firearms introduce an element of intimidation, or at least the potential for misunderstandings and escalation of conflicts. The adverse effects of openly carried firearms can impact opposing parties, opposing counsel, the lawyer’s potential clients, witnesses, and even judges and jurors encountered outside the courtroom. The ABA’s Model Rules of Professional Conduct in their current form include provisions that could be applicable, such as rules against coercion and intimidation, but there is no explicit reference to firearms. Several reported incidents with lawyers and firearms have occurred in recent years, and as states liberalize their “open carry” laws, as well as laws about guns in and around courthouses, the issue will arise with increasing frequency. The time has come for an express ethical prohibition of lawyers openly carrying firearms, at least in adversarial contexts. Such a rule could take the form of an amended subsection to the Model Rules, an addition to the official Comment to the Rules, or even in a formal ethics opinion from the ABA. The ABA has already adopted a well-reasoned and well-supported Resolution urging states to prohibit firearms from courthouses, and it should follow this with ethical guidance for attorneys. In addition, state ethics committees should promulgate similar rules, or issue ethics opinions, discouraging or prohibiting lawyers from openly carrying firearms in adversarial settings. Winner of the Claude E. Ducloux Prize for Excellence in Legal Ethics Scholarship.

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