Professor

In this Article, Professor Spiegel examines the doctrine of informed consent as it relates to the legal profession. The Article first traces the development of the informed-consent doctrine and then considers the extent to which current legal doctrines and professional norms incorporate informed consent between lawyers and their clients. Professor Spiegel suggests that the predominant focus of informed consent is on a lawyer’s power to bind his client vis-à-vis third parties and advocates for the development of an informed-consent doctrine that accounts for the interests of all parties involved. Professor Spiegel concludes with a discussion of the application of his proposed doctrine and the limitations of its implementation.

Boston College Law School Faculty Papers

Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession

In this article the author discusses the impact of the 1983 amendments of the Federal Rules of Civil Procedure to Rule 11. The Article explores the claim that the 1983 amendments had a disproportionate impact upon civil rights cases, thereby violating the norm of procedural neutrality. In Section I, the author argues that one of the central meanings of procedural neutrality is closely related to the argument that procedural rules should be apolitical. In Section II, the author examines what the studies of Rule 11 reveal about the effect of the 1983 version upon civil rights claims. The author then considers, in Section III, whether a demonstration of improper motive is necessary for arguing that a rule is non-neutral and asserts in Section IV that although the 1983 version of Rule 11 had a differential impact on civil rights claims, it was nonetheless neutral because there was justification for its differential application. Finally in Section V, the author explores the questions raised in debates over “neutral constitutional principles” and concludes that when determining the neutrality of a rule, one must consider not only motive but also the status quo or baseline against which deviations from equal impact are measured.

Rule 11 Studies and Civil Rights Cases: An Inquiry into the Neutrality of Procedural Rules

The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue

This article offers a counter narrative to the conventional description of legal aid in the United States. By offering this counter narrative it focuses us on certain enduring difficulties that any legal aid or legal services program has to face if it wants to engage in reform efforts: problems of funding and problems of the social and historical context. Conventional wisdom has it that legal aid until the 1960s was largely devoted to individual cases and that it was not until the advent of federally-funded legal services that law reform and social change became part of the delivery of legal services to the poor. Contrary to this conventional wisdom, there is another story. As this article demonstrates, there was an aspiration toward using the legal system aggressively to achieve social justice during the period 1900 to roughly 1920. This changed during the 1920s. In presenting this counter-narrative, this article first looks at legal aid during the period 1900-1920 to support the thesis that during this period legal aid aspired toward using the legal system to achieve social justice. It then looks at that next decade, the 1920s, and describes how legal aid became the kind of organization that conventional wisdom describes: a legal aid organization devoted almost solely to individual cases with a large focus on domestic relations practice and abandoning any attempt to use law to achieve social justice. More importantly, this article explores why this change to a more traditional type of legal aid occurred. The most interesting theories blame Reginald Heber Smith and the American Bar Association. Smith is blamed because of his alleged emphasis on access to justice in a landmark study of legal aid called “Justice and the Poor” published in 1919. The ABA is blamed because of the alleged “takeover” of legal aid by the conservative bar in the 1920’s, enabled by the ABA’s establishment of a standing committee on legal aid. These theories, however, are too reductionist and overlook two more important explanations for this retreat from law reform: the need for funding and the social and historical context. These explanations are significant not only because they shed light on a neglected part of our past, but because they connect that past to issues that persist until today.

Legal Aid 1900 to 1930: What Happened to Law Reform?

In this Article, the author argues that where clinical education fits within the law school curriculum does not have to be viewed as simply a question of whether more skills training is needed to balance the theory of the traditional curriculum. The author posits that stating the question this way obscures the choices already made, as most types of legal education have elements of both theory and practice. However, how the terms “theory” and “practice” are defined strongly influences how various aspects of legal education are perceived. Therefore, the way we view clinical education depends as much upon the viewpoint of the observer as it does upon the intrinsic nature of the activity. The author argues that the division of legal education into theoretical and practical categories is not simply a reflection of the natural order, but is a choice. The author explores various views of what is meant by the terms “theory” and “practice” and argues that there is choice involved in the definition of these terms. Therefore, even if legal education is labeled as practical, the author posits that this label can mean something other than skills training. However, though clinical legal education can in fact be viewed in these different ways, it tends to be understood solely as a form of skills training, which is predominantly technical. The author subsequently concludes that this limited labeling of clinical courses results in other possibilities within the law school curriculum being ignored.

Theory and Practice in Legal Education: An Essay on Clinical Legal Education

This article discusses the controversy regarding neutral procedural rules. It focuses on the claim that the 1983 version of Rule 11 had a disproportionate impact upon civil rights cases, thereby violating the norm of procedural neutrality. By looking at this claim about the impact of Rule 11 on civil rights cases, we can evaluate whether the 1983 version of Rule 11 violated the norm of procedural neutrality, and also understand the different ways that the concept of procedural neutrality is used. This exploration will help us understand the larger debate regarding the neutrality of procedural rules and to make connections to similar debates in other areas of law, particularly constitutional law.

Mark Spiegel

Works

Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession

Rule 11 Studies and Civil Rights Cases: An Inquiry into the Neutrality of Procedural Rules

The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue

Legal Aid 1900 to 1930: What Happened to Law Reform?

Theory and Practice in Legal Education: An Essay on Clinical Legal Education

The Rule 11 Studies and Civil Rights Cases: An Inquiry into the Neutrality of Procedural Rules

The Case of Mrs. Jones Revisited: Paternalism and Autonomy in Lawyer-Client Counseling

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Rule 11 Studies and Civil Rights Cases: An Inquiry into the Neutrality of Procedural Rules

The New Model Rules of Professional Conduct: Lawyer-Client Decision Making and the Role of Rules in Structuring the Lawyer-Client Dialogue

Legal Aid 1900 to 1930: What Happened to Law Reform?

Theory and Practice in Legal Education: An Essay on Clinical Legal Education

The Rule 11 Studies and Civil Rights Cases: An Inquiry into the Neutrality of Procedural Rules

The Case of Mrs. Jones Revisited: Paternalism and Autonomy in Lawyer-Client Counseling

Works