Books & Blog
Louisiana Legal Ethics: Standards and Commentary (Dane S. Ciolino, ed., 2022)
Robert Force & Dane S. Ciolino, Handbook on Louisiana Evidence Law 2021 (West 2021)
Louisiana Criminal Law, Cases and Materials (2013) (with Bobby M. Harges and Wendy K. Shea)
Louisiana Legal Ethics Weblog (https://lalegalethics.org/) (Dane S. Ciolino, ed. & admin.)
Dane S. Ciolino, Harmonizing Legal Ethics Rules with Advocacy Norms, 36 Geo. J. of Legal Ethics __, Issue 2 (forthcoming Spring 2023) (SSRN Download)
For millennia, advocates have used extra-evidentiary persuasion techniques to tip the scales in favor of their clients. They appeal to emotion, develop personal credibility, and tell stories to influence tribunals with irrelevancies. But in so doing, lawyers violate more recent legal ethics and adjudication rules that facially prohibit such widely accepted advocacy practices. This Article addresses the disconnect between these rules and advocacy norms. It argues that the lack of congruence between the rules as written and as enforced runs afoul of the rule of law. It concludes that legal ethics and adjudication rules should be revised to include a flexible reasonableness standard that is compatible with age-old advocacy norms.
Dane S. Ciolino, Cloud Computing for Criminal Lawyers: It’s Not the Future Anymore, The Champion, Vol. XL, No. 10, December 2016, at 22
Dane S. Ciolino & Monica Hof Wallace, Recodifying Emancipation: A Précis of the 2009 Revision of Louisiana Emancipation Law, Loyola Law Review, 56 Loy. L. Rev. 135 (2010)
In 2009, reforms to the emancipation provisions of the Louisiana Civil Code and Louisiana Code of Civil Procedure became effective. These reforms, undertaken as part of the on-going revision of the Louisiana Civil Code, modernized, simplified and clarified Louisiana’s substantive and procedural emancipation law. This Article discusses and evaluates this important and long-needed recodification of Louisiana emancipation law. It considers the origins and early development of emancipation law in Louisiana. It then discusses and evaluates the 2009 recodification of emancipation law and procedure. It concludes with a critique of the 2009 revisions.
Dane S. Ciolino, Managing the Perils of Lawyer Social Networking, ABA Section of Litigation, Committee on Ethics & Professionalism, 2010 Annual Review (2010)
Weblogs and social networking sites such as Facebook, Twitter and LinkedIn are increasingly a part of the everyday lives of lawyers as well as the clients, witnesses, opponents and judges with whom they deal. Such on-line services provide lawyers with unprecedented opportunities to market their practices, develop relationships and improve professional competence. Significant perils accompany these opportunities, however. Indeed, the misuse of social media sites has already led to ethical issues for a number of lawyers and judges. This article considers the benefits and perils of lawyer social networking. After reviewing the good that social networking can do for lawyers, for their clients and for the legal system, it considers the bad that can result if lawyers improperly or carelessly use social networking sites and services. It concludes with a few dos and don’ts on managing these perils and minimizing the ethical risks associated with lawyer social networking.
Sandra S. Varnado & Dane S. Ciolino, Reconsidering Lawyers’ Ethical Obligations in the Wake of a Disaster, 19 The Prof. Lawyer 8 (2009)
This article considers the legal ethics issues that arose in the aftermath of Hurricane Katrina and to the subsequent responses by governments and professional organizations. It addresses the post-disaster issues associated with: (1) the legal deadlines threatened because of Hurricane Katrina; (2) the unauthorized practice of law by displaced Gulf Coast lawyers and those from elsewhere who visited the Gulf Coast region to offer pro bono legal assistance to disaster victims; and (3) the ethical obligations of volunteer lawyers offering pro bono legal advice to disaster victims via hotlines. It the considers a lawyer's ethical duties to prepare for disaster and how a failure to do so may, in some circumstances, violate standards of professional conduct. Finally, it addresses the ethical—and perhaps moral—obligation of lawyers to offer pro bono assistance in the wake of a disaster.
Louisiana Professional Responsibility Law and Practice (Dane S. Ciolino, ed., 2007)
This single-volume reference contains all relevant standards governing lawyer and judicial conduct in Louisiana. In addition, this handy reference contains extensive annotations to the Louisiana Rules of Professional Conduct.
Dane S. Ciolino, Lawyer Ethics Reform in Perspective: A Look at the Louisiana Rules of Professional Conduct Before and After Ethics 2000, 65 La. L. Rev. 536 (2005)
This Article surveys and critiques the 2004 revisions to the Louisiana Rules of Professional Conduct. After considering the history of Louisiana’s regulation of lawyers, it evaluates the recent amendments to the Louisiana Rules adopted by the Louisiana Supreme Court during the Ethics 2000 revision process. In so doing, it discusses the substance of each amended rule and contrasts the rule as revised with its Louisiana predecessor and its Model Rule counterpart. Concluding that the revised rules are a marked improvement over what came before, the Article nonetheless calls for the on-going reevaluation of the principles, norms and rules of lawyering in Louisiana.
Dane S. Ciolino, Redefining Professionalism as Seeking, 49 Loy. L. Rev. 229 (2003)
The "professionalism" movement in the American legal profession has foundered because no lawyer, judge or academician is capable of stating definitively what is or is not "professional." Professor Ciolino argues that what constitutes "professional" conduct is something upon which the profession will never agree Indeed, professional norms as to which there is consensus are simply not the stuff of the current "professionalism" debate. They are, rather, the stuff of disciplinary codes–or "legal ethics." As a result, Professor Ciolino arguesthat the legal profession redefine"professionalism" as seeking.Professionalism-as-seeking simplyimplores lawyers to examine–inthemselves and in their colleagues at the bench, bar and academy–the norms, values and assumptions that guide professional conduct.
Dane S. Ciolino & Erin A. Donelon, Questioning Strict Liability in Copyright, 54 Rutgers L. Rev. 351 (2002)
Copyright is a strict liability regime under which any infringer, whether innocent or intentional, is liable for infringement. In this article, the authors argue that strict liability is neither justified nor necessary in copyright law, but rather is rooted in deeply flawed historical, conceptual and economic misconceptions about intellectual property in general and copyright in particular. Worse, strict liability is affirmatively harmful to copyright's utilitarian goals of providing incentives to authors to create, and providing greater public access to works of authorship. For these reasons, the authors call for Congress to abolish copyright's harsh strict liability regime and to substitute in its stead a liability regime that fairly accounts for the culpability of infringers.
Dane S. Ciolino, How Copyrights Became Community Property (Sort Of): A Look Through the Looking Glass of Rodrigue v. Rodrigue, 47 Loyola L. Rev. 631 (2001)
This Article discusses the problems created by the Fifth Circuit's 2000 opinion in Rodrigue v. Rodrigue. After briefly discussing the history of the Rodrigue litigation, it critiques the Fifth Circuit's preemption analysis and concludes that it is hopelessly flawed, both as a matter of federal constitutional law and federal statutory law. It then looks ahead to the post-Rodrigue partition proceeding-a proceeding in which state courts will face the unenviable task of identifying that portion of the dismembered copyright now deemed to belong to the community, namely the fructus of the copyright, and then valuing that fructus before distributing it and other community property between the ex-spouses. Finally, this Article concludes with a call for future courts to reject the Rodrigue court's analysis and, instead, to hold that the Copyright Clause of the Constitution and the Copyright Act of 1976 preempt state marital property law on the issue of copyright ownership.
Dane S. Ciolino, Why Copyrights Are Not Community Property, 60 La. L. Rev. 127 (1999)
This Article argues that copyrights created during the legal regime of community property are the separate property of the author-spouse. Although community property law purports to vest ownership of all property–including copyrights–in the community, federal copyright law vests ownership of copyrights solely in the author. Given this conflict, federal law preempts state community property law on the issue of initial vesting of copyright ownership. Furthermore, no provision of state community property law purports to transfer vested copyrights from the author to the community. Indeed, no state law could do so given that federal law prohibits most involuntary copyright transfers. Arguing that federal classification of copyrights as the separate property of the author-spouse is fair, this Article concludes that such classification is essential not only to further important interests advanced by community property law, but also to comply with the Copyright Clause of the Constitution.
Dane S. Ciolino, Reconsidering Restitution in Copyright, 48 Emory L.J. 1 (1999)
The Copyright Act authorizes courts to compel copyright infringers to destroy all infringing goods and to disgorge any profits attributable to their unlawful appropriation of a copyrighted work. Restitutionary in nature, these gain-based remedies purportedly exist to prevent the unjust enrichment of infringers. However, these remedies are not only practically and conceptually problematic in action, but they also lack a sound theoretical footing in either the law of restitution or the law of copyright. This Article reconsiders restitution in copyright. After surveying the role of restitutionary remedies in copyright’s remedial scheme, it traces the problems associated with these remedies to fundamental misunderstandings of both restitution law and copyright law. Concluding that copyright’s restitutionary remedies should be rectified, this Article proposes a number of alternatives for judicial or legislative reform.
Dane S. Ciolino, Rethinking the Compatibility of Moral Rights and Fair Use, 54 Wash. & Lee L. Rev. 33 (1997)
In 1990, Congress amended the Copyright Act to recognize limited federal moral rights of integrity and attribution. Under this legislation, American visual artists can prevent others from misattributing their works of art and from altering such works under certain circumstances. These moral rights, however, are expressly limited by copyright's fair-use doctrine, a doctrine that permits the otherwise unauthorized use of a copyrighted work for socially desirable purposes such as criticism, comment, news reporting, teaching, research, or parody. This Article argues that the fair-use doctrine is inherently incompatible with federal moral rights. Particularly, federal moral rights and fair use affect different types of property,· federal moral rights and fair use relate to different types of rights,· and federal moral rights and fair use are supported by different moral justifications. For these reasons and others, this Article calls for courts to decline Congress's statutory invitation to apply the fair use doctrine as a limitation on artists' federal moral rights.
Dane S. Ciolino, The Mental Element of Louisiana Crimes: It Doesn’t Matter What You Think, 70 Tul. L. Rev. 855 (1996)
Most crimes require culpability—proof that the offender committed a prohibited act with a specified blameworthy state of mind. Anglo-American criminal law generally recognizes two distinct classes of culpability: culpability premised on subjective wrongdoing and culpability premised on objective wrongdoing. Crimes requiring subjective wrongdoing typically require proof of "intent, " "purpose," "knowledge," or "recklessness," while crimes requiring only objective wrongdoing require proof of "negligence." The Louisiana Criminal Code appears to recognize this significant distinction by requiring proof of "criminal intent" for some crimes while requiring proof only "negligence" for others. Under Louisiana criminal law, however, criminal intent can be proved with evidence of mere negligence. This Article critically evaluates Louisiana culpability doctrine. After summarizing the historical and philosophical bases of culpability, it considers Louisiana's anomalous statutory approach to culpability, an approach that applies an objective standard of conduct to crimes nominally requiring criminal intent. Finally, it calls for a fundamental revision of several culpability-related provisions of the Louisiana Criminal Code.
Dane S. Ciolino, Moral Rights and Real Obligations: A Property-Law Framework for the Protection of Authors’ Moral Rights, 69 Tul. L. Rev. 935 (1995)
From the moment an author or artist creates a work he has various rights in it under traditional property law and intellectual-property law. The author typically owns the copyright in the work and, as a result, can preclude others from, among other things copying, publicly displaying or publicly performing the work. Moreover, the author typically owns the chattel that embodies the work, such as the physical sculpture, painting, manuscript, videotape or audiotape. Under property law, he can prevent others from using or altering the work while it belongs to him. Once the work is sold, however, the author's right to control the work is diminished if not lost. As a result, a purchaser of a work of art is normally free to do with it as he wishes; he may even destroy, deface, or mutilate the author's creation with impunity. Moral rights permit the author of a work to protect it even after the work has been sold to another. While the particular rights included within the general category of "moral rights" vary from jurisdiction to jurisdiction, the following have most often been recognized: (1) the right of attribution, (2) the right of integrity, (3) the right of divulgation, and (4) the rights of withdrawal and modification. The right of attribution gives the author the right to force any possessor of a work created by the author to attribute the work to him. The right of integrity gives the author the right to prevent others from defacing or mutilating his work. The right of divulgation gives the author the right to decide when a work of art is completed and whether it should be published. Finally, the rights of withdrawal and modification give the author the right to remove his work from the public or to modify it upon payment of indemnity to the owner of the work. As they originated and developed in Europe, particularly in France, moral rights were considered to be a component of the author's right of personality. Because an artist's creation was believed to be an outgrowth of his soul, his artwork was thought to embody his self and to constitute his "spiritual child". As a result, the moral-rights doctrine developed to protect the author's personality rights in his work. It did not develop within the law of property. Indeed, the French believed that artwork was "different from other forms of property." Despite this developmental history, property law provides fertile ground for the germination of property rights analogous, but not identical, to traditional European moral rights. This Article first considers the development, general characteristics, and sources of traditional moral rights. Using the Louisiana Civil Code as a model, it then evaluates two alternative bases for the recognition of moral right, one grounded in tort and the other in property law. Finally, it concludes that traditional moral rights are functionally similar to certain property rights and can be given practical effect as such.
Dane S. Ciolino & Gary R. Roberts, The Missing Direct-Tender Option in Federal Third-Party Practice: A Procedural and Jurisdictional Analysis, 68 N.C.L. Rev. 423 (1990)
Under the present Federal Rules of Civil Procedure, third-party practice under Rule 14 in nonadmiralty cases is limited to "indemnity impleader." Thus, a defendant in a civil action may not implead a third party unless the defendant has a right of indemnity or contribution against that third party for all or part of the plaintiff's claim. By contrast, a defendant in an admiralty action may also implead third parties who may be liable to the plaintiff directly. The authors refer to admiralty's more liberal third-party practice as "tendered-defendant impleader." In this article, Mr. Ciolino and Professor Roberts explain the historical reasons for the divergence between civil and admiralty third-party practices. They discuss the practical advantages and policy objectives achieved by direct-tender practice and conclude that the Federal Rules should retain admiralty's tendered-defendant impleader and adopt it for all civil cases.
Dane S. Ciolino, Casenote, Lafleur v. John Deere Co.: Recovery of Nonpecuniary Damages in Redhibitory Actions, 61 Tul. L. Rev. 704 (1987)