Publications

Books

  • Professional Responsibility: A Contemporary Approach (West, 2d ed. 2014) (with Russell G. Pearce, Daniel J. Capra, Renee Newman Knake & Laurel S. Terry)
  • Professional Responsibility: A Contemporary Approach (West, 2011) (with Russell G. Pearce & Daniel J. Capra)
  • Tax Fraud and Money Laundering (The John Marshall Publ. Co., 1993) (with Robert H. Hishon & Richard A. Westin)
  • Editor, Government Ethics for the 1990's: The Collected Reports of the New York State Commission on Government Integrity (Fordham Univ. Press, 1991)

Book Chapters

  • "Prosecutors’ Ethics in Context: Influences on Prosecutorial Disclosure,” in Lawyers in Practice: Ethical Decision Making in Context 269-92 (Leslie C. Levin & Lynn Mather, ed.) (University of Chicago Press 2012) (with Ellen Yaroshefsky)
  • “Rule 1.10: Imputation of Conflicts of Interest,”in The New York Rules of Professional Conduct: Rules and Commentary 235-66 (2010) (NYCLA Ethics Inst., ed.)
  • “Rule 1.11: Special Conflicts of Interest for Fomer and Current Government Officers and Employees,”in The New York Rules of Professional Conduct: Rules and Commentary 267-86 (2010) (NYCLA Ethics Inst., ed.)
  • “Rule 1.12: Specific Conflicts of Interest for Former Judges, Arbitrators, Mediators or Other Third-Part Neutrals,”in The New York Rules of Professional Conduct: Rules and Commentary 287-95 (2010) (NYCLA Ethics Inst., ed.)
  • “Ethical Issues in Dealing with Experts,” in Litigators on Experts 126 (ABA 2010) (with Lawrence J. Fox)
  • “Ethics in Criminal Advocacy,” in The State of Criminal Justice 181 (2009) (with Ellen Yaroshefsky)
  • “Ethics in Criminal Advocacy,” in The State of Criminal Justice 123 (2007-2008) (with Ellen Yaroshefsky)
  • “The Ethics of Marketing Legal Services,” in Effective Marketing for Lawyers (N.Y.S. Bar Ass'n 1996) (with Russell Pearce), and Effective Marketing for Lawyers (N.Y.S. Bar Ass'n 2d ed. 2005) (with Russell Pearce)
  • Reporter to Evidence in America: The Federal Rules in the United States (1989-91 supp., Fed. R. Evid. 801, 802, and 804)

Articles in Law Journals

  • Prosecutors’ Disclosure Obligations in the U.S., 42 Hitotsubashi J. L. & Politics 51 (2014) (with Peter Joy)
  • Judicial Regulation of US Civil Litigators, 16 Legal Ethics 306 (2013)
  • Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?, 122 Yale L.J. 2336 (2013)
  • The Right to Plea Bargain With Competent Counsel After Cooper and Frye: Is the Supreme Court Making the Ordinary Criminal Process “Too Long, Too Expensive, and Unpredictable . . . in Pursuit of Perfect Justice”?, 51 Duquesne L. Rev. 735 (2013)
  • Lawyers’ Professional Independence: Overrated or Undervalued?, 46 Akron L. Rev. 599 (2013)
  • The Attorney-Client Privilege – Selective Compulsion, Selective Waiver and Selective Disclosure: Is Bank Regulation Exceptional?, 2013 Journal of the Professional Lawyer 85 (2013)
  • Unregulated Corporate Internal Investigations: Achieving Fairness for Corporate Constituents, 54 B.C. L. Rev. 73 (2013) (with Ellen S. Podgor)
  • Federal Criminal Discovery Reform: A Legislative Approach, 64 Mercer L. Rev. 639 (2013)
  • Rehabilitating Lawyers: Perceptions of Deviance and its Cures in the Lawyer Reinstatement Process, 40 Fordham Urb. L.J. 139 (2012) (with Jane Moriarty)
  • The Flood of U.S. Lawyers: Natural Fluctuation or Professional Climate Change?, 19 Int’ J. Legal Prof. 193 (2012)
  • Prosecutors and Professional Regulation, 25 Georgetown J. Legal Ethics 873 (2012)
  • The Community Prosecutor: Questions of Professional Discretion, 47 Wake Forest L. Rev. 285 (2012) (with Alafair S. Burke)
  • Foreword, Globalization and the Legal Profession, 80 Fordham L. Rev. 2305 (2012)
  • Developing Standards of Conduct for Prosecutors and Criminal Defense Lawyers, 62 Hastings L.J. 1093 (2011)
  • Prosecutors’ Ethical Duty of Disclosure In Memory of Fred Zacharias, 48 San Diego L. Rev. 57 (2011)
  • The Legal Ethics Scholarship of Ted Schneyer: The Importance of Being Rigorous, 53 Ariz. L. Rev. 365 (2011)
  • The Civil Government Lawyer: A View from the Jury Box, 38 Hofstra L. Rev. 883 (2010) (with Karen Bergreen).
  • Beyond Training Prosecutors About Their Disclosure Obligations: Can Prosecutors' Offices Learn From Their Lawyers' Mistakes, 31 Cardozo L. Rev. 2161 (2010)
  • Ethically Representing a Lying Cooperator: Disclosure as the Nuclear Deterrent, 7 Ohio St, J, of Crim. L. 639 (2010)
  • Fear of the Unknown: Judicial Ethics After Caperton, 60 Syracuse L. Rev. 229 (2010)
  • ABA Ethics Reform from "MDP" to "20/20": Some Cautionary Reflections, 2009 Journal of the Professional Lawyer I (2009)
  • Rationalizing Judicial Regulation of Lawyers, 70 Ohio St. L.J. 73 (2009) (with Fred C. Zacharias)
  • Regulating Federal Prosecutors: Let There Be Light, 118 Yale L.J. Pocket Part TK (2009)
  • The Duty to Avoid Wrongful Convictions: A Thought Experiment in the Regulaton of Prosecutors, 89 Boston University L. Rev. 1 (2009) (with Fred C. Zacharias)
  • Public Service Must Begin at Home: The Lawyer as Civics Teacher in Everyday Practice, 50 Wm. & Mary L. Rev. 1207 (2009) (with Russel Pearce)
  • Regulating Discourtesy on the Bench: A Study in the Evolution of Judicial Independence, 64 NYU Annual Survey of American Law 497 (2009) (with Rebecca Roiphe) (symposium on judicial transparency)
  • Prosecutorial Discretion and Post-Conviction Evidence of Innocence, 6 Ohio St. J. of Crim. L. 467 (2009) (with Ellen Yaroshefsky)
  • Foreword, The Lawyer's Role in a Contemporary Democracy, 77 Fordham L. Rev. 1229 (2009)
  • Remembering Mary Daly: A Legal Ethicist Par Excellence, 83 St. John's L. Rev. 23 (2009)
  • The Market for Bad Legal Scholarship: William H. Simon's Experiment in Professional Regulation, 60 Stanford L. Rev. 1605 (2008)
  • "The U.S. Attorneys Scandal” and the Allocation of Prosecutorial Power, 69 Ohio State L.J. 187 (2008) (with Fred C. Zacharias)
  • Criminal Defense Lawyering at the Edge - A Look Back, 20 Hofstra Law Rev. 353 (2007)
  • Some Realism About Bar Associations, 57 DePaul L. Rev. 425(2007)(with Elizabeth Chambliss)
  • Teaching Lawyers Ethics, 51 St. Louis L. Rev. 1091 (2007)
  • Permissive Rules of Professional Conduct, 91 Minn. L. Rev. 265 (2006)(with Fred C. Zacharias)
  • Taking Cues: Inferring Legality from Others' Conduct, 75 Fordham Law Review 1429 (2006)
  • The Religious Lawyering Critique, 21 J. of Law & Religion 283 (2006)
  • Representing Children in Families - Foreword, 6 Nevada L. Rev. 571 (2006)(with Annette R. Appell)
  • "Anything Rather Than a Deliberate and Well-Considered Opinion"- Henry Lord Broughman, Written by Himself, 19 Georgetown J. Legal Ethics 1221 (2006) (with Fred C. Zacharias)
  • Reconceptualizing Advocacy Ethics, 74 George Washington Law Review 1 (2005)(with Fred C. Zacharias)
  • Foreword, Professional Challenges in Large Firm Practices, 33 Fordham Urb. L.J. 7 (2005)
  • Prosecutorial Neutrality, 2004 Wisconsin L. Rev. 837 (with Fred C. Zacharias)
  • Foreword, Colloquium, Deborah Rhode’s Access to Justice, 73 Fordham L. Rev. 841 (2004)
  • Federal Court Authority to Regulate Lawyers: A Practice in Search of a Theory, 56 Vand. L. Rev. 1303 (2003) (with Fred C. Zacharias)
  • Prosecutorial Ethics as Usual, 2003 Illinois L. Rev. 1573
  • Criminal Neglect: Indigent Defense from an Ethics Perspective, 52 Emory Law Review 1170 (2003)
  • Regulating Federal Prosecutors’ Ethics, 55 Vand. L. Rev. 381 (2002) (with Fred C. Zacharias)
  • Bar Association Ethics Committees: Are They Broken?, 30 Hofstra L. Rev. 731 (2002)
  • May Judges Attend Privately Funded Educational Programs? Should Judicial Education Be Privatized?: Questions of Judicial Ethics and Policy, 29 Fordham Urb. L.J. 941 (2002)
  • John D. Feerick: The Dean of Ethics and Public Service, 70 Fordham L. Rev. 2165 (2002)
  • Judicial Rationalizations for Rationing Justice: How Sixth Amendment Doctrine Undermines Reform, 70 Fordham L. Rev. 1729 (2002)
  • Thoughts About Corporate Lawyers After Reading The Cigarette Papers: Has the “Wise Counselor” Given Way to the “Hired Gun”?, 51 DePaul L. Rev. 407 (2001)
  • Reflections on the Ethics of Legal Academics: Law Schools as MDPs; or, Should Law Professors Practice What They Teach?, 42 S. Tex. L. Rev. 301 (2001)
  • Public Declarations of Professionalism, 52 S. Car. L. Rev. 729 (2001)
  • The Disciplinary Restrictions on Multidisciplinary Practice: Their Derivation, Their Development, and Some Implications for the Core Values Debate, 84 Minn. L. Rev. 1115 (2000)
  • The Uniqueness of Federal Prosecutors, 88 Georgetown L.J. 207 (2000) (with Fred C. Zacharias)
  • Must Government Lawyers “Seek Justice” in Civil Litigation?, 9 Widener J. Pub. L. 235 (2000)
  • There But for Fortune: Real-Life vs. Fictional “Case Studies” in Legal Ethics, 64 Fordham L. Rev. 977 (2000)
  • Rationing Lawyers: Ethical and Professional Issues in the Delivery of Legal Services to Low-Income Clients, 67 Fordham L. Rev. 1713 (1999)
  • Why Should Prosecutors “Seek Justice”?, 26 Fordham Urb. L.J. 609 (1999)
  • The Criminal Regulation of Lawyers, 67 Fordham L. Rev. 327 (1998)
  • Lawyers as Nonlawyers in Child-Custody and Visitation Cases: Questions From a “Legal Ethics” Perspective, 73 Ind. L.J. 665 (1998)
  • Lawyer Discipline: Conscientious Noncompliance, Conscious Avoidance, and Prosecutorial Discretion, 66 Fordham L. Rev. 1307 (1998)
  • Less is More: Teaching Legal Ethics in Context, 39 Wm. & Mary L. Rev. 357 (1998)
  • Conflicts of Interest in Legal Representation: Should the Appearance of Impropriety Rule Be Eliminated in New Jersey--Or Revived Everywhere Else?, 28 Seton Hall L. Rev. 315 (1997)
  • The Role of Personal Values in Professional Decisionmaking, 11 Geo. J. of Legal Ethics 19 (1997)
  • Conflicts of Interest in Litigation: The Judicial Role, 65 Fordham L. Rev. 71 (1996)
  • Whose Rules of Professional Conduct Should Govern Lawyers in Federal Court and How Should the Rules Be Created?, 64 George Washington L. Rev. 460 (1996)
  • Foreword: Children and the Ethical Practice of Law, in Ethical Issues in the Legal Representation of Children, 64 Fordham L. Rev. 1281 (1996) (with Bernardine Dohrn)
  • Contextualizing Professional Responsibility: A New Curriculum for a New Age, 58 Law & Contemp. Probs. 193 (1995) (with Mary Daly & Russell Pearce)
  • Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 St. Thomas L. Rev. 69 (1995)
  • Of Laws and Men: An Essay on Justice Marshall’s View of Criminal Procedure, 26 Ariz. St. L.J. 369 (1994) (with Daniel Richman)
  • Foreword, Ethical Issues in Representing Older Clients, 62 Fordham L. Rev. 961 (1994) (with Nancy Coleman)
  • Foreword, Urban Environmental Equity, 21 Fordham Urb. L.J. 425 (1994)
  •  Lethal Fiction: The Meaning of “Counsel” in the Sixth Amendment, 78 Iowa L. Rev. 433 (1993) [reprinted in 6 Crim. Prac. L. Rev. 183 (1994)
  • “The Whole Truth?”: How Rules of Evidence Make Lawyers Deceitful, 25 Loyola of Los Angeles L. Rev. 699 (1992)
  • “Power, Not Reason”: Justice Marshall's Valedictory and the Fourth Amendment in the Supreme Court's 1990-91 Term, 70 N.C.L. Rev. 373 (1992)
  • After the Fall: The Criminal Law Enforcement Response to the S&L Crisis, 59 Fordham L. Rev. S155 (1991)
  • Zealous Representation Bound: The Intersection of the Ethical Codes and the Criminal Law, 69 N.C.L. Rev. 687 (1991) [reprinted in 4 Crim. Prac. L. Rev. 323 (1992)
  • “Hare and Hounds”: The Fugitive Defendant's Constitutional Right to Be Pursued, 56 Brooklyn L. Rev. 439 (1990) [reprinted in 4 Crim. Prac. L. Rev. 67 (1992)]
  • The Good-Faith Exception to the Fruit of the Poisonous Tree Doctrine, 26 Crim. L. Bull. 509 (1990)
  • Doe v. Federal Grievance Committee: On the Interpretation of Ethical Rules, 55 Brooklyn L.Rev. 485 (1989)
  • “Through a Glass, Darkly”: How the Court Views Motions to Disqualify Criminal Defense Lawyers, 89 Colum. L. Rev. 1201 (1989) [reprinted in 2 Crim. Prac. L. Rev. 551 (1990)]
  • Her Brother’s Keeper: The Prosecutor's Responsibility When Criminal Defense Counsel Has a Conflict of Interest, 16 Am. J. Crim. L. 323 (1989)
  • “Package” Plea Bargaining and the Prosecutor's Duty of Good Faith, 25 Crim. L. Bull. 507 (1989)
  • Limits on a Prosecutor’s Communications With Prospective Defense Witnesses, 25 Crim. L. Bull. 139 (1989)
  • A Prosecutor’s Communications With Represented Defendants: What Are the Limits?, 24 Crim. L. Bull. 283 (1988)
  • The Ethical Prosecutor and the Adversary System, 24 Crim. L. Bull. 126 (1988)
  • Note, Court Appointment of Attorneys in Civil Cases: The Constitutionality of Uncompensated Legal Assistance, 81 Colum. L. Rev. 366 (1981)
  • Note, A Functional Analysis of the Effective Assistance of Counsel, 80 Colum. L. Rev. 1053 (1980)

Articles in Legal Periodicals

  • “The Litigator’s Monopoly,” Litigation, vol. 40, no. 4, Summer 2014, p. 10
  • “Experiential Learning: Practice Makes Perfect,” NYLJ, Apr. 21, 2014
  • “Two Wrongs Make it Worse in Cops’ Retrial,” Nat’l L.J., Sept. 13, 2013
  • “The Ethics-Procedure Dichotomy,” Litigation, vol. 39, no. 3, Summer 2013, p. 11 
  • “Federal Litigation: A “No-Contact” Sport?,” Litigation, vol. 38, no. 4, Summer/Fall 2012, p. 11
  • “Prosecutors for Sale,” Nat'l L.J., Oct. 1, 2012, p. 43
  • “Balancing Conscience and Confidentiality for Attorney Whistleblowers,” Corporate Counsel, June 6, 2012 (with Jordan Thomas), available at: http://www.law.com/jsp/cc/PubArticleFriendlyCC.jsp?id=1202557377777
  • “The Perils of Sloppy Engagement Agreements,” Litigation, vol. 38, no. 1, Fall 2011, p. 7
  • “The Perils of New Technology,” Litigation, vol. 37, no. 4, Summer 2011, p. 6
  • “Criminal Justice: There’s Always More to Learn,” Criminal Justice, Summer 2011, p. 1
  • “What Use Are Legal Academics?,” Criminal Justice, Spring 2011, p. 1
  • “Criminal Justice–What’s Ahead?  Roadblocks and New Directions,” Criminal Justice, Winter 2011, p. 1
  • “Thinking About White-Collar Crime and Punishment,” Criminal Justice, Fall 2010, p. 1
  • “Question of the Week – Unauthorized Practice of Law,” BNA’s Corporate Counsel Weekly 372 (Dec. 9, 2009) [reprinted in BNA, “Legal Ethics for In-House Corporate Counsel,” B-2601 (2010)]
  • Book Review [Peter A. Joy & Kevin C. McMunigal, Do No Wrong  - Ethics for Prosecutors and Defense Lawyers], The Champion 59-60 (Feb. 2009)
  • “Prosecutors’ Professional Independence: Reflections on Garcetti v. Ceballos,” Criminal Justice, Summer 2010, p. 4
  • “Deceitful Silence,” Litigation, Winter 2007, p. 24 
  • “Feeling a Chill,” ABA Journal, Dec. 2005, p. 61 (with David C. Clifton)
  • “Prosecuting Means More Than Locking Up Bad Guys,” Litigation, Fall 2005, p. 12
  • Articles in Federal Bar Council News: “Privileges in the Corporate Context,” vol. 12, no. 1, p. 4 (2005); “Ethics Reform in New York,” vol. 11, no. 2, p. 11 (2004); “MJP for Litigators,” vol. 10, no. 4, p. 14 (2003); “Privately-Funded Seminars for Judges,” vol. 9, no. 5, p. 1 (2002); “Multijurisdictional Issues,” vol. 7, no. 4, p. 11 (2000); “Moral Ambiguity/Ambiguous Morals: Morgan Stanley and the $10,000 Payment,” vol. 6, no. 4, p. 1 (1999); “When Prosecutors Accuse Criminal Defense Lawyers of Wrongdoing,” vol. 5, no. 5, p. 1 (1998); “Prosecuting Lawyers,” vol. 5, no. 4, p. 11 (1998); “A View From The ‘Ethics’ Front,” vol. 5, no. 3, p. 7 (1998); “Professional Detachment,” vol. 4, no. 4, p. 8 (1997); “The Philosophy of Our Ethical Rules,” vol. 4, no. 3, p. 23 (1997); “The President vs. Mrs. Jones,” vol. 4, no. 1, p. 11 (1997); “Should Judges Promote Professionalism?,” vol. 3, no. 4, p. 4 (1996); “Bad Arguments,” vol. 3, no. 1, p. 7 (1996); “The Sins of the Lawyer (and the Procedural Consequences),” vol. 2, no. 4, p. 9 (1995); “Attorney Discipline in the Second Circuit,” vol. 2, no. 2, p. 11 (1995)
  • “Interviewing Corporate Client Officers and Employees: Ethical Considerations,” ABA Section of Litigation, Committee on Corporate Counsel Newsletter, vol. 19, no. 1, p. 1 (Fall 2004) [reprinted in ABA Section of Litigation, Professional Liability Litigation [Newsletter], vol. 3, no. 1, p. 1 (Winter 2005)]
  • Client Confidences: Should Lawyers Be Allowed to Reveal Them to Prevent Death or Serious Bodily Harm?: Yes, New York Lawyer, Oct. 2001, p. 20
    Adventures in the Mortgage Trade: A Case Study in Legal Ethics, 27 N.Y. Real Property Law Journal 49 (Spring, 1999) (with Joshua Stein) [also published in Commercial Real Estate Financing: What Borrowers and Lenders Need to Know 1999 vol. 2, p. 749 (PLI 1999)]
  • Lying Clients: An Age-Old Problem, Litigation, Fall 1999, p. 19 [updated and reprinted in Priscilla Anne Schwab, ed., The Litigation Manual, First Supplement 1105 (2007)]
  • When Conflicts of Interest Arise Unexpectedly, Litigation Ethics, Spring/Summer 1998, p. 11
  • The "No-Contact" Rule in New York State--Some Less Contentious Questions, N.Y. Professional Responsibility Report, Aug. 1998, p.1
  • The Ten Most Common Ethical Violations, Litigation, Summer 1998, p. 48 [reprinted in Trial (March 1999), p. 70; updated and reprinted in Priscilla Anne Schwab, ed., The Litigation Manual, First Supplement 1077 (2007)]
  • Teaching Legal Ethics in Context, 70 N.Y.S.B.J. 6 (May/June 1998) (with Mary Daly)
  • Ethical Issues in Representing Children, 7 The Professional Lawyer 9 (1996)
  • Federal Prosecutors' Ethics: Who Should Draw the Lines?, 7 The Professional Lawyer 1 (1995) Ethical Issues in Representing Older Clients, 5 The Professional Lawyer 18 (1994)Crime and Punishment After the S&L Crisis, 46 Consumer Finance L.Q. Rep. 195 (1992)Conflicts of Interest in Corporate Criminal Cases, 1 Corp. Crim. & Const'l L. Rptr. 98 (1990)  “Judge Kennedy Might Not Meet Expectations of Administration,” Nat'l L.J., Dec. 21, 1987, p. 20

Other Publications

  • “Interviewing Corporate Client Officers and Employees: Ethical Considerations,” in ABA Section of Litigation, 2004 Annual Conference.
  • Report of the Commission on Multijurisdictional Practice (Aug. 2002)
  • “Representing Corporations Under Fire: Ethical Considerations – A Hypothetical,” and “Representing Corporations Under Fire: Ethical Considerations,” in MCLE Marathon 2002 521, 527 (PLI 2002)
  • Interim Report of the Commission on Multijurisdictional Practice (Nov. 2001)
  • “A Guide to Professionalism Commissions” report of the ABA Standing Committee on Professionalism (2001)
  • “Recent Federal Court Decisions in Professional Responsibility,” in Current Developments in Federal Civil Practice 2001 413 (PLI 2001) (with Mary Lu Bilek)
  • Editor, Litigation Ethics: Course Materials for Continuing Legal Education (ABA Section of Litigation 2000) (with John Q. Barrett)
  • “Assisting Clients with Multi-State and Interstate Legal Problems: The Need to Bring the Professional Regulation of Lawyers into the 21st Century” (report summarizing the proceedings of the Symposium on the Multijurisdictional Practice of Law) (June 2000)
  • “Recent Federal Court Decisions in Professional Responsibility,” in Current Developments in Federal Civil Practice 1999 311 (PLI 1999)
  • “The Duty to Report Ethical Misconduct,” in ABA Section of Family Law, 1998 Annual Meeting 17 (July 31-Aug. 3, 1998)
  • “Local Rules Limiting Attorney Speech in Criminal Proceedings” (Federal Bar Council, June 1996) (principal author)
  • “Establishing Ethical Standards for Federal Prosecutors and Defense Attorneys,” 49 The Record of the Assn. of the Bar of the City of New York 21 (1994) (principal author)
  • “Ex Parte Contacts With Employees of a Corporate Party in Civil Litigation,” in ABA Section of Litigation, Best Evidence Seminar 41 (Apr. 19, 1991)
  • “Use of an Attorney’s Statements Against His or Her Client,” in ABA Section of Litigation, Best Evidence Seminar 35 (Mar. 9-10, 1990)