ADR and the Professional Responsibility of Lawyers
Should the meaning of “ethical” lawyering change in the ADR context? This article contains several essays arguing that change is needed, that current ethics rules and codes must be adjusted, and new rules must be drafted that respond to the subtleties and complexities of the issues raised in ADR legal practice. Professor Carrie Menkel-Meadow provides an overview of the major ethical issues facing lawyers in ADR practice and reviews the current ethics rules landscape in ADR. Professor Robert Cochran offers a proposal to amend the current professional responsibility rules to include a mandate for advising clients of ADR options. Professor Kimberlee Kovach argues in favor of a new ethic for non-adversarial representation. Finally, Professor Stephen Huber addresses a number of critical ethical issues implicated by arbitration practice.
Mediating life and death decisions.
Assume for just a moment that you are lying in a nursing home bed. You have advanced Alzheimer's disease, that is, you cannot walk, you cannot bathe, dress, or feed yourself, or carry out your most private of functions. You no longer recognize your family or your caretakers. You are not in pain but your cognitive awareness is significantly limited. Your disease has reached a point where you can no longer take in sufficient amounts of nutrition by mouth to sustain yourself. Your doctor wants to insert a feeding tube. Your spouse refuses to consent to the insertion. The doctor thinks the feeding tube is medically warranted because you are not terminally ill or in pain. You could in fact live more than a year with a feeding tube in place. There are two ways this "dispute" can be resolved within the nursing home. The dispute can be taken to the ethics committee a multidisciplinary committee composed of two physicians, two nurses, a social worker, a minister, a bioethicist and a local school teacher who will provide your spouse and physician with a recommendation based on prevailing ethical and societal norms. Alternatively, the dispute can be mediated, i.e., a third party can assist your physician and spouse try to reach an agreement on their own. If neither of these options is attractive, the case could be decided by a judge in court. Which method would you choose?
Eyes to the Future
Editorial Comments: The final slot of the Conference Program was the very lively ‘Eyes to the Future’ session. Our four panelists were seated in the front of the lecture theatre, facing the audience. A television crew hired by the University’s TV unit recorded the entire session for us; the TV tape was then transcribed into LATEX. Appearing in square brackets […] below are occassional editorial comments - added at times for clarity and continuity of speech.