CLARK D. CUNNINGHAM
Legal Ethics
Back to Professor Cunningham Home Page:
www.ClarkCunningham.org
Director, National Institute for Teaching Ethics & Professionalism
GEORGIA STATE UNIVERSITY COLLEGE OF LAW. Atlanta, Georgia. Professor of Law and W. Lee Burge Chair in Law & Ethics. (6/02 - present). Courses: The Client Relationship, Fundamentals of Law Practice, Transition to Practice, Professional Responsibility: Heroes & Villains.
WASHINGTON UNIVERSITY SCHOOL OF LAW. St. Louis, Missouri. Associate Professor (7/89-6/93); Professor (7/93-5/02). Israel Treiman Research Fellow (1999-2000). Courses: The Legal Profession: Heroes and Villains.
PUBLICATIONS:
Misleading Statements on Russia Meeting Recall Clinton’s Impeachment, The Conversation (August 3, 2017)
“Did Sessions and Trump conspire to obstruct justice?” The Conversation (June 14, 2017)
"Educational Programs for Professional Identity Formation: The Role of Social Science Research," 68 Mercer Law Review 591 (2017) (with Muriel J. Bebeau and Stephen J. Thoma)
"Learning Professional Responsibility," Building on Best Practices: Transforming Legal Education in a Changing World (Deborah Maranville, Lisa Radtke Bliss, Carolyn Wilkes Kaas & Antoinette Sedillo Lopez eds. Lexis/Matthew Bender 2015); expanded version available at www.teachinglegalethics.org/learningpr .
"What Do Clients Want From Their Lawyers?", 2013 Journal of Dispute Resolution 143 (Annual Symposium Issue: Overcoming Barriers in Preparing Law Students for Real-World Practice), excerpted in Teaching the Clinic Seminar (Jane H. Aiken, Deborah Epstein & Wallace J. Mlyniec eds. West Academic 2014).
"Developing Professional Judgment: Law School Innovations in Response to the Carnegie Foundation's Critique of American Legal Education," in The Ethics Project in Legal Education (Eds. Michael Robertson, Francesca Bartlett, Kieran Tranter & Lilian Corbin (London: Routledge-Cavendish 2010) (co-authored with Charlotte Alexander).
"Remediation Program for Dentists Provides Data on Moral Development Important to All Professions," 76 Journal of the American College of Dentists No. 4 (2009).
" 'How Can We Give Up Our Child?' A Practice-Based Approach to Teaching Legal Ethics," 42 The Law Teacher: The International Journal of Legal Education 312 (2008) (Special Issue on The Values of Common Law Legal Education).
"Valuing What Clients Think: Standardized Clients and the Assessment of Communicative Competence" (co-authored with Karen Barton, Gregory Todd Jones & Paul Maharg), 13 Clinical Law Review 1 - 65 (2006); reprinted in New Currents of Law School Education 131-146 (Kwansei Gakuin University Press 2009) (excerpted and translated into Japanese).
"The Professionalism Crisis: How Bar Examiners Can Make a Difference," 74 Bar Examiner 6 - 9 (Nov 2005) (lead article in special issue on "Other Lawyer Licensing Processes and Alternatives to the Bar Examination").
"Specialty Certification as an Incentive for Increased Professionalism: Lessons from Other Disciplines and Countries," 54 South Carolina Law Review 987- 1009 (2003) (co-authored with Adrian Evans).
"How to Explain Confidentiality?" 9 Clinical Law Review 579 -621 (2003).
"Evaluating Effective Lawyer-Client Communication: an International Project Moving From Research to Reform," 67 Fordham Law Review 1959-86 (1999).
"Taking It to the Streets: Putting Discourse Analysis to the Service of a Public Defender's Office," 2 Clinical Law Review 285-314 (1995) (with Bonnie S. McElhinny).
"Sometimes You Can't Make a Dent, But They Know You've Been There: The Lawyer As God's Witness," 106 Harvard Law Review 1962-79 (1993).
"The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse," 77 Cornell Law Review 1298-1387 (1992).
"A Tale of Two Clients: Thinking About Law as Language," 87 Michigan Law Review 2459-2494 (1989) (reprinted in Alex Hurder et al (eds.), Clinical Anthology (1997).
"Professional Responsibility," 34 Wayne Law Review 1005-1031 (l988).
Legal Ethics in a Gandhian Perspective. (First Gandhi Memorial Lecture: Gandhi-In-Action International) New Delhi, India. l987. Reprinted in R. P. Misra, The Gandhian Model of Development and World Peace (1989).
SCHOLARLY AND PROFESSIONAL PRESENTATIONS:
Organized Fall 2015 Meeting of the National Institute for Teaching Ethics & Professionalism, Atlanta, Georgia.
Organized 2015 Burge Conference on Law & Ethics, “Lawyers as Leaders,” November 9, 2015, Georgia State University College of Law, Atlanta, Georgia.
“Courage, Compassion and Commitment: Two Ethical Decisions that Changed History,” The 2015 Judge Harry J. Wilters, Jr. Lecture on Constitutional Law and Professional Ethics, University of South Alabama, September 2015.
"Learning Professional Responsibility for the Practice of Law: the Way Forward," presented at 8th Worldwide Conference of the Global Alliance for Justice Education, Turkey, July 2015.
Deans' Forum on Professional Formation, March 1-2, 2015, Pepperdine University School of Law, Malibu, California (invited discussant).
“Lessons from Gandhi on Professional Responsibility,” presented January 13, 2015, Workshop on Consumer Protection and Public Interest Advocacy, National Law School of India University, Mangalore, India.
“Courage: Operationalizing Research on Virtue Ethics and Moral Development for Professional Education,” presented January 7, 2015, Varieties of Virtue Ethics Conference, Oriel College, University of Oxford, UK.
Organized and Chaired Fall 2014 Meeting of the National Institute for Teaching Ethics & Professionalism, Serenbe, Georgia.
Organized and Chaired 2014 International Workshop of the National Institute for Teaching Ethics & Professionalism, City Law School, London, UK.
“Are We Making a Difference? Assessing the Effectiveness of Legal Ethics Education,” July 11, 2014, Sixth International Legal Ethics Conference, London, UK (organized and chaired panel).
Organized and Chaired Fall 2013 Workshop of The National Institute for Teaching Ethics & Professionalism, Serenbe, Georgia.
Workshop on Moral Courage, Opening Speaker, Teach Legal Ethics UK, The City Law School, London, England, July 12, 2013.
Convivium on Education, Professionalism and the Academy, invited participant, supported by a grant from the United Kingdom Higher Education Academy, Papa Westray, Scotland, July 1-5, 2013.
"Conflicts of Interest Survival for Corporate Counsel: Advance Waiver – To Waive or Not to Waive," presented March 14, 2013, Annual Corporate Counsel Conference, Hispanic National Bar Association, Atlanta, Georgia.
"Conflicts, Confidentiality and Representing a Corporate Entity," presented February 21, 2013, Kilpatrick Townsend & Stockton LLP Annual Ethics Conference, Atlanta, Georgia.
"What Do Clients Want From Their Lawyers?", presented October 19, 2012, at Law Review Symposium on Overcoming Barriers in Preparing Law Students for Real-World Practice, University of Missouri School of Law, Columbia, Missouri.
"Does Legal Education Need to Give Higher Priority to Teaching Ethics and Professional Judgment? If So, What Can Be the Role for Professional Bodies and Regulatory Bodies?", organized and co-chaired session on October 5, 2012 at the Annual Conference of the International Bar Association, co-sposored by the Academic & Professional Development Committee, Professional Ethics Committee, and Bar Issues Commission, Dublin, Ireland.
"Open-access resource designed for teaching ethics and professionalism," co-presented with Professor Nigel Duncan on July 14, 2012, at the Fifth International Legal Ethics Conference, Banff, Alberta, Canada.
Organized and Chaired 2012 International Workshop of The National Institute for Teaching Ethics & Professionalism, Banff, Alberta, Canada.
Organized and Chaired Spring 2012 Workshop of The National Institute for Teaching Ethics & Professionalism, Seattle, Washington.
"Anti-Money Laundering, Ethics and Professional Judgment: A Teaching Exercise," presented March 9, 2012, Annual Meeting of the American College of Trust & Estate Counsel (ACTEC), Miami.
“Real-Life Experience and Authentic Responsibility,” Keynote Address, February 13, 2012, National Conference on Curriculum Renewal in Legal Education, Queensland University of Technology, Brisbane, Australia.
“A Case That Changed History - Gandhi as Commercial Litigator,” presented February 9, 2012, New Foundations for Legal Process and Lawyers' Ethics: Australia New Zealand Legal Ethics Colloquium, University of Otago, Dunedin, New Zealand.
Organized and Chaired 2011 Burge Conference on Law & Ethics, "What Do We Know about How Bar Discipline Really Works: What Should Law Schools Teach about Bar Disciplne?"Georgia State University College of Law, Atlanta.
Organized and Chaired Fall 2011 Workshop of The National Institute for Teaching Ethics & Professionalism, Serenbe, Georgia.
"Anti-Money Laundering, Ethics and Professional Judgment: A Teaching Exercise," presented November 2, 2011, Annual Conference of the International Bar Association, Dubai (Joint Session of the Academic & Professional Development Committee and the Anti-Money Laundering Legislation Implementation Working Group).
"Anti-Money Laundering, Ethics and Professional Judgment: A Teaching Exercise," presented October 29, 2011, Teaching Ethics in the Law Curriculum, The City Law, City University London. Also served as co-organizer of the workshop.
"The OPM Teaching Exercise," presented October 20, 2011, Canadian Association for Legal Ethics, University of New Brunswick Faculty of Law.
"Conflicts, Confidentiality and Representing a Corporate Entity," presented June 1, 2011, Sidley & Austin, New York City.
"Client Satisfaction and Effective Representation through Listening: How Hard Can It Be?," presented June 1, 2011, Sidley & Austin, New York City.
"The Emerging Worldwide Emphasis on Teaching Ethics and Professionalism," presented April 29, 2011 at the opening session of the Spring 2011 Workshop of The National Institute for Teaching Ethics & Professionalism held at St. Thomas University School of Law, Minneapolis. Also organized and chaired the entire workshop.
"When and How Legal Ethics Should be Taught," presented January 29, 2011 at the Fourth Learning in Law Annual Conference, sponsored by the United Kingdom Centre for Legal Education and held at the Warwick University School of Law (co-presented with Nigel Duncan and Tony King).
"Conflicts, Confidentiality and Company Law," presented January 26, 2011 to Dundas & Wilson, Edinburgh (Scotland's largest law firm).
Conference on Empirical Professional Ethics, held at St. Thomas University School of Law, on November 6, 2010, in Minneapolis, Minneapolis (invited discussant).
“Are We Making a Difference? Developing Outcome Measures to Evaluate the Effectiveness of Law School Efforts to Teach Ethics and Develop Professionalism,” presented on October 16, 2010 at FutureEd 2: Making Global Lawyers for the 21st Century, Harvard Law School.
“Ethical Competence: Preparing Lawyers for Substantial Client Responsibility,” organized and chaired three hour joint session of the Academic & Professional Development Committee and the Professional Ethics Committee on October 7, 2010, at the Annual Conference of the International Bar Association, held in Vancouver, Canada.
“When Ethical Rules Differ,” participated in panel presentation to the Professional Ethics Committee on October 4, 2010 at the Annual Conference of the International Bar Association, held in Vancouver, Canada.
“Ideas for Teaching Ethics and Professionalism,” plenary speaker at the Annual Meeting of the Continuing Legal Education Regulators' Association, on July 26, 2010, in New York City.
“Global Collaboration Toward More Effective Teaching of Legal Ethics and Professionalism,” panel presentation on July 16, 2010 at the Fourth International Legal Ethics Conference held at Stanford Law School.
“Fostering An Ethical Professional Identity,” participated in plenary panel presentation on June 25, 2010, at the annual American Bar Association Conference of Associate Deans, held in Minneapolis, Minnesota.
“Threshold Learning Outcome on Ethics and Professional Responsibility,” presented by pre-recorded video on June 7, 2010, for the Inaugural Conference of Associate Law Deans in Melbourne, Australia.
“Can We Predict and Prevent Professional Misconduct? Lessons from the Dental and Medical Professions,” organized and chaired panel presentation on June 5, 2010, at the American Bar Association Annual National Conference on Professional Responsibility, held in Seattle, Washington.
“Developing Criteria for Effective Client Communication from Standardized Client Assessment Protocols,” presented May 6, 2010, in Baltimore, Maryland at the 2010 Clinical Conference of the Association of American Law Schools.
"How the New Hampshire Program Has Adapted a Required Element of Medical Licensing By Creating "Standardized Client" Assessments," presented on April 23, 2010, at the Conference on A Performance-Based Approach to Licensing Lawyers: The New Hampshire Two-Year Bar Examination, University of New Hampshire School of Law.
"Deciding to Let the Windmill Win: the Baby Jessica Adoption Case," presented in Madrid, Spain, on October 7, 2009, at a Joint Session of the Academic and Professional Committee and the Judges Forum on Tilting at Windmills, Annual Meeting of the International Bar Association.
"What Clients Want from Their Lawyers: Are Big Firm Clients Different?," presented in Denver on May 28, 2009, as part of a panel on Private Practice Lawyers: Economic & Organizational Structure of Law Firms at the Annual Meeting of the Law & Society Association.
"Creating an International Web-Based Resource for Teaching Legal Ethics," presented January 23, 2009 at the Third Learning in Law Annual Conference, sponsored by the United Kingdom Centre for Legal Education and held at the Warwick University School of Law.
"Innovative Methods for Teaching Legal Ethics," presented July 28, 2008 at a Special Program for Mexican Law Teachers, Annual Conference of the Southeastern Association of Law Schools.
"Lessons from Gandhi on Becoming a Lawyer," presented in India on October 2, 2007 at the Regional Workshop on Clinical Teaching Methods at the National Law Institute in Bhopal; on October 6 at the Regional Workshop on Clinical Teaching Methods at the Symbiosis Law College in Pune; and on October 9 at the Government Law College, Sikkim.
"Effective Lawyer-Client Communication" and "Clinical Methods for Teaching Ethics and Professionalism," presented in India in May and October 2007 at three regional workshops on clinical teaching methods (in Bangalore, Bhopal and Pune) sponsored by the South Asia Forum of Clinical Law Teachers.
"What Clients Want from Their Lawyers," Keynote Speaker, Annual Partners Meeting of Dundas & Wilson, Scotland's largest law firm, in Edinburgh, Scotland, on November 11, 2006.
“Professionalism and the Accredited Specialist” (co-presenter with Robert Pirrie, Chief Executive, The Society of Writers to Her Majesty’s Signet, Edinburgh, Scotland), Annual Roundtable of the ABA Standing Committee on Specialization, San Antonio, March 24, 2006.
"Do We Value What Clients Think About Their Lawyers? If So, Why Don't We Measure It?" Presented October 28, 2005 at the 6th International Clinic Conference at Lake Arrowhead, California, co-sponsored by UCLA Law School and the Institute of Advanced Legal Studies, University of London (co-authors: Karen Barton, Gregory Todd Jones & Paul Maharg).
"Do We Value What Clients Think About Their Lawyers? If So, Why Don’t We Measure It?" 7th Annual Conference of the Learning in Law Initiative, United Kingdom Centre for Legal Education, University of Warwick, England, January 7, 2005 (co-presented with Professor Paul Maharg, Glasgow Graduate School of Law).
"Confidentiality and Clients," ABA National Conference on Professional Responsibility, Naples, Florida, June 4, 2004.
“Using Specialty Certification to Promote Professionalism,” Annual Roundtable of the ABA Standing Committee on Specialization, New Orleans, March 26, 2004 (Keynote Speaker).
“What is Their Story?”, 2003 Conference on Ethics and Professionalism, Emory Law School.
"Conference on Problems in Discovery and Professionalism," University of Georgia Law School, November 14 -15, 2002 (invited discussant).
"The Effective Lawyer-Client Communication Project," Hispanic National Bar Association, Annual Meeting, Atlanta, October 17, 2002.
"National Conference on Professionalism," Stanford Law School & University of South Carolina School of Law, Charleston, South Carolina, September 27-29, 2002 (invited participant).
"How to Explain Confidentiality," Fifth International Clinical Conference, UCLA Law School, November 2001 (also chaired session on international clinical education).
"The Client's Perspective on the Initial Interview: A Social Science Approach," Hart Legal Workshop, Institute of Advanced Legal Studies, University of London, June 2001 (also chaired session entitled, "The Attorney-Client Relationship: An Increasingly Important Topic for Legal Education, Research and Law Reform").
"Assessing Quality Legal Services: The Client's Perspective," Clinical Legal Education Association, New York City, July 2000 (organized and chaired workshop held in conjunction with annual meeting of the American Bar Association).
" 'What is Their Story?' Using Steven Spielberg's Amistad to Improve Lawyer-Client Communication," 2000 Conference on Law, Culture & the Humanities, Georgetown University Law Center, March 2000.
"Evaluating Effective Lawyer-Client Communication: an International Project Moving From Research to Reform," Worldwide Advocacy Conference, Inns of Court School of Law, London, England (July 1998) (plenary address); also presented at The Conference on The Delivery of Legal Services to Low-Income Persons: Professional and Ethical Issues sponsored by the American Bar Association, Open Society Institute, and The Legal Services Corporation (Fordham Law School, New York City December 1998), the Annual Meeting of the International Client Counseling Competition Board (March 1999), the Midwest Clinical Teachers Association (October 1999), Inaugural Conference of the Global Alliance for Justice Education (December 1999), New York University Law School (September 2000).
"A Modest Proposal: Cross-National Empirical Research on Lawyer-Client Communications." Presented at the Annual Meeting of the Law & Society Association (June 1997); the Fourth International Conference on Clinical Legal Education and Scholarship sponsored by UCLA and the University of London (October 1997); University of South Pacific Department of Law (March 1998); Bond University School of Law, Griffith University School of Law, Queensland University of Technology Law Faculty; Centre for Legal Education, Australia (March 1998).
"Empirical Studies of Attorney-Client Communications," Faculty Seminar, University of Sydney Law School, Australia, September 5, 1996.
"Empirical Studies of the Legal Profession," Association of American Law Schools Annual Meeting (1994) (Joint Session of Section on Professional Responsibility and Section on Clinical Legal Education) (co-chaired session with Marc Galanter)
"The Client's Voice: Using Narrative in Traditional and Clinical Teaching," Association of American Law Schools Annual Meeting (1993) (Joint Session of Committee on Curriculum and Research and Section on Clinical Legal Education).
"The Lawyer-Client Relationship: Individual Dynamics," Hastings Law School Conference on the Theoretics of Practice (1992) (discussant).
"A New Way of Practicing Law: The Lawyer as Translator." Various versions presented to: the Second International UCLA-Warwick Clinical Conference (1989); the Law & Society Program, Macalaster College (1990); the Institute for Legal Studies, University of Wisconsin-Madison (1990); the Annual Meeting of the Law & Society Association (1990); Annual Cornell Law Review Symposium (1992).
AWARDS:
2012 Annual Meeting of the International Bar Association, Award for “achievement of goals of noteworthy significance” on behalf of the Academic and Professional Development Committee. (“In recognition of the exceptional on-going web based initiative for the teaching of ethics.”)
SIGNIFICANT LITIGATION:
Alan Cohen as Trustee of Friedman's Creditor Trust v. Morgan Schiff & Co., 385 B.R. 381,. 446-62 (S.D. Ga. 2008) (opinion and order denying defendants' motion to dismiss, citing Cunningham expert witness affidavit for plaintiff on malpractice claim against debtor's former law firm). Law firm settled malpractice claim shortly after this decision, 394 B.R. 623, 634 (S.D. Ga. 4/16/08). See also In Re Friedman's Inc. Derivative Litigation, 386 F.Supp 1355, 385 F.Supp 1345 (N.D. Ga 2005) (related case).
McKesson Information Solutions LLC v. Duane Morris LLP (Fulton County Superior Court, Georgia) (Order of Disqualification November 8, 2006) (as independent expert, testified that purported waiver of future conflicts in engagement letter was inconsistent with Georgia Rules of Professional Conduct).
Snapping Shoals Elec. Membership Corp. v. RLI Ins. Corp., 2006 WestLaw 1877078 (N.D.Ga. 2006)(order disqualifying major national law firm for conflict of interest) (served as expert witness in support of motion to disqualify)
ETS Creditors’ Litigation Trust v. Charles Edwards et al (N.D. Ga.) (expert witness for plaintiff, appointed by bankruptcy court to represent victims of one of the largest investor scams of the decade, the ETS Payphone scheme; retained to evaluate the ethical conduct of law firm that represented the ETS corporation and its sole stockholder).
East Main Baptist Church v. Union Planters Bank,142 S.W.3d 729 (Mo. 2004) (expert witness for defendants in opposition to motion to certify class on grounds that class counsel created non-consentable conflict of interest by accepting payment of fees from potential defendant) (Missouri Supreme Court ruled for defendants, denying class certification, consistent with my expert opinion).
State of Georgia v. Michael Abernathy, 630 S.E.2d 421 (Ga. App. 2006) (expert witness on conflict of interest in support of motion for new trial) (denial of new trial motion affirmed on appeal).
Monsanto Company v. Eugene Stratemeyer, S.D. Ill., Case No. 99-4197-GPM (expert witness in support of motion to disqualify; motion granted)
OTHER EXPERIENCE:
Manuscript reviewer for Cambridge University Press, University of Chicago Press, Legal Ethics and The International Journal of Speech, Language and the Law.
Director, National Institute for Teaching Ethics & Professionalism (NIFTEP) (2005 - present). NIFTEP is a consortium of nationally-recognized program on ethics and professionalism: The Experiential Advantage at the Sturm College of Law, University of Denver; The Louis Stein Center for Law & Ethics at Fordham University; The Center on the Global Legal Profession at the Maurer School of Law at Indiana University-Bloomington; The Mercer University School of Law Center for Legal Ethics and Professionalism; The Holloran Center for Ethical Leadership in the Professions at the University of St. Thomas School of Law; and The W. Lee Burge Endowment for Law & Ethics at Georgia State University. NIFTEP's national workshops are also sponsored by the American Bar Association Standing Committee on Professionalism. See the NIFTEP web site: www.niftep.org
Member, The Chief Justice's Commission on Professionalism, Supreme Court of Georgia (Georgia State University representative) (August 2002 - present).
Reporter, Student Practice Rule Committee, Board of Bar Examiners, State of Georgia (2014-15).
Special Master, Supreme Court of Georgia (2010-14) (conduct lawyer discipline hearings and make findings of fact and conclusions of law to be reviewed by Supreme Court of Georgia). Report and recommendation of disbarment adopted by the Supreme Court, In re Dicks, 758 S.E.2d 311 (Ga. 2014).
Chair, Selection Committee, National Award for Innovation & Excellence in Teaching Professionalism, American Bar Association/Conference of Chief Justices (2003 - 2006). See the Award web site: http://clarkcunningham.org/Professionalism/Award-Home.htm
The Effective Lawyer-Client Communication (ELCC) Project. Director. Pilot project to develop a model methodology for evaluating initial client interviews. See the ELCC web site: http://law.gsu.edu/Communication/
1999 International Client Counseling Competition, Chicago, Illinois. Served as a judge for international law student competition sponsored by the International Bar Association.
1987 University of Michigan Law School. Ann Arbor, Michigan. Visiting Adjunct Lecturer in Law. Taught "Lawyers and Clients."
1987-89 Michigan Attorney Discipline Board. Hearing Panel Member.
1985-1988 Wayne State University Law School. Detroit, Michigan. Adjunct Professor. Taught Professional Responsibility and Federal Civil Rights Litigation.