St. Mary's Journal on Legal Malpractice & Ethics

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St. Mary's University School of Law


Elizabeth Germano

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Since the early 1990s, when David Wilkins published his influential paper “Who Should Govern Lawyers” in the Harvard Law Review, legal ethics scholars and professors have paid attention to the range of processes and devices that govern lawyer behavior. This Article will report on the results of a study currently underway that seeks to provide empirical evidence to answer the question posed in this Article’s title: Do lawyers train staff in confidentiality preservation because they fear bar discipline? Because they fear malpractice liability? Because they must comply with malpractice liability carrier demands? Because they honor client confidences for their own value and wish to protect them? Because the market forces them to do so? Because it is the right thing to do? The same, or similar, sets of questions may be asked about establishing conflict check procedures, devising their marketing to stay within norms, charging reasonable fees, and other professional ethics-related actions by lawyers. To gather data on these issues, the authors conducted a survey of the bars of Florida and Virginia and present on the findings.