Lecture by Andrew L. Kaufman
I begin by expressing my delight that Dean Sherman asked me to give this McGlinchey Lecture in honor of the noted New Orleans trial lawyer, Dermot McGlinchey. I would also like to express my appreciation at the presence of many members of the McGlinchey firm and of two specific people: Eileen McGlinchey, Dermot's widow, and Fionuala McGlinchey Monsted, one of his daughters, who honor us with their presence. I also want to acknowledge one other person because of her personal tie to my family: Marian Mayer Berkett, one of the deans of the New Orleans Bar. The reception after the lecture will take place in the room next door that has been named in her honor. Marian has a long association with my family. She enjoyed a pleasure that I never had—an acquaintance with my father-in-law, who died fifty years ago, many years before I met my wife, Linda. My father-in-law was a surgeon, and, before World War II, Marian's husband, George, entered my father-in-law's office after he finished his internship.
I hope that Dermot McGlinchey would be pleased by my choice of topic. It concerns fundamental issues about the conduct of lawyers, especially lawyers engaged in trial practice. It is a drama involving a pressing issue of federalism that is not yet well known in the profession. The subject of the drama is the governing rules of professional conduct. The problem begins with the federal courts, but the solution chosen could control the rules in the state courts as well. Here is the cast of characters: first, the federal judiciary, represented by the 94 federal district courts of the United States, the Judicial Conference of the United States, its Committee on Rules of Practice and Procedure, and its Subcommittee on Attorney Conduct, with representation from all the major committees of the Judicial Conference; second, the federal executive, represented by the Department of Justice (DOJ); third, the federal legislature which is, of course, the Congress of the United States; fourth, the state judiciaries, in their role as lawmakers and law enforcers in the field of attorney conduct, represented by the Conference of Chief Justices, an organization—as its name suggests—of the state court chief justices; and finally, the private bar, currently represented by the American Bar Association (ABA). Before the drama is over, the private bar will perhaps also be represented by local bar associations in every state, most of which might be expected to rally to the support of the state judiciaries, but they are only just beginning to wake up to the problem.
About the Author
Andrew L. Kaufman. Charles Stebbins Fairchild Professor of Law, Harvard University.
Citation
75 Tul. L. Rev. 149 (2000)