Celebrating the Zacharias Prize Winner - LER Bonus Content No. 17 (11.13.24)
Scott Cummings wins the prestigious Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility with his article "Lawyers in Backsliding Democracy"
Welcome to your seventeenth installment of Bonus Content from the Legal Ethics Roundup!
In addition to the (FREE!) weekly roundup every Monday morning, I regularly post Bonus Content for headlines that can’t wait or with news celebrating awards, like today.
Each year the Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility is awarded to an outstanding work in legal ethics by the Association of American Law Schools (AALS) Section on Professional Responsibility. As the AALS website notes: “Zacharias, a law professor at University of San Diego Law School, died in 2009 at the age of 56, after a career as a nationally known expert in professional responsibility, writing on the ethical duties that lawyers have to the legal system and society as well as clients. This prize was established to honor and carry on his work.”
It is our second year celebrating the Zacharias Prize here at the LER. To learn more about last year’s recipient and the history the prize, please revisit Legal Ethics Bonus Content No. 6 - Celebrating the Zacharias Prize Winner (11.30.23).
This year’s recipient is Scott L. Cummings (UCLA) for his article Lawyers in Backsliding Democracy, 112 Cal. L. Rev. 513 (2024). He will be honored at the AALS annual meeting in January 2025 in San Francisco. This Bonus Content post features a Q&A with Professor Cummings about his award-winning article as well as reflections about Fred Zacharias’ life and a full list of past-winners of the prize. (There are more than 20 recipients over the years!)
This year the prize committee also awarded “Honorable Mention” to Nora Freeman Engstrom (Stanford) and James Stone (Stanford) for their article Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, 134 Yale L. J. __ (2024). You can read their article here.
Let’s focus now on the article that secured Professor Cummings the Zacharias Prize, Lawyers in Backsliding Democracy. Here’s the abstract:
This Article explores the role of lawyers in democratic backsliding—the degradation of democratic institutions and practices using law rather than violence. The Article’s central aim is to set an agenda and outline an approach to studying the professional paradox at the center of backsliding: why and how lawyers attack the rule of law. It thus seeks to shift the scholarly lens from the conventional view of lawyers as defenders of democracy to investigate lawyers as authors of autocracy. Toward that end, the Article theorizes the legal profession as a site of backsliding, outlining a framework that positions lawyers in relation to distinct pathways of autocratization on the slow road of gradual democratic decline and the fast track of imminent democratic attack. On the slow road, the Article draws upon evidence of structural change in the American legal profession to suggest how the erosion of key democratic functions performed by lawyers increases backsliding risk by reducing trust in the legal system and commitment to the rule of law. On the fast track, using the 2020 Stop the Steal campaign as a case study, the Article shows how lawyers in moments of democratic crisis engage in legal mobilization to weaponize distrust, fusing legal and media tactics to legitimize false claims and justify invocation of extraordinary power. The Article concludes by calling for changes to U.S. professional regulation and education to strengthen democratic resilience, while mapping a research agenda for comparative study of antidemocratic lawyering in unsettled times.
You can download the full article here. And now that you have an overview of the piece, here’s some insight into Professor Cummings’ process for writing it.
My Q&A with Professor Scott Cummings
RKJ: What inspired you to write this article?
SC: I have spent my career writing about the role of lawyers in movements for social change, focusing on how law is mobilized to strengthen democracy. This article looks at legal mobilization through the opposite lens: examining what lawyers, sworn to uphold the rule of law, do to subvert it. In terms of inspiration, I suppose I was naïve but I never seriously considered that lawyers, even those who were on the other side of policy issues I wrote about, would be on the other side of democracy. That changed in 2020. And I wanted to know why.
RKJ: Your article reveals how some lawyers have harmed democracy. How has the role of lawyers in this way compared to other government officials and policy makers? Do you believe lawyers have heightened obligations to uphold democracy?
SC: Lawyers are necessary but not sufficient to harm democracy. Ultimately, they act in service of political leaders and larger social movements that seeks to undermine critical democratic institutions, like competitive elections and judicial independence. For these movements to succeed, they need lawyers to design, authorize, and defend legal proposals to break down guardrails in the system designed to stop the consolidation of power. This is what happened in the United States in 2020, when lawyers developed the fake elector plan to subvert election certification. It is what has happened in other countries where lawyers have found constitutional loopholes to pack courts and change election rules to ensure one-party rule. For autocratic leaders to achieve such changes within the formal legal boundaries of existing systems (or at least to pretend to), having lawyers bless their actions is a necessary ingredient. This is why lawyers have heightened obligations to protect the democratic system against rule-of-law attacks. When authoritarian-minded leaders are elected, lawyers—in government and the judiciary—are really the last line of defense against backsliding. This line of defense is going to be severely tested with Trump having now won the election with power to put in loyalist lawyers not committed to the rule of law.
RKJ: Do you think that the discipline of lawyers like Rudy Guiliani, Kenneth Chesebro, and Jeffrey Clark as well as their criminal indictment alongside lawyers like Sidney Powell will serve as a deterrent to prevent lawyers in the future from engaging in similar efforts?
SC: There is a lot of uncertainty. On one hand, there is no question that the disciplinary system has worked effectively to sanction key 2020 lawyers in complicated and high-stakes cases. But lawyers are appealing their disciplinary sanctions and the criminal cases are a long way from resolution. And we saw some of the same lawyers involved in the 2020 election involved in dubious litigation efforts in 2024 while people like Jeffrey Clark are being discussed as leading candidates for high-level government positions in the new Trump administration. Clark is particularly interesting because in his D.C. Bar case, he challenges D.C.’s jurisdiction over all DOJ lawyers, an argument which, if accepted on appeal, would remove D.C.-based federal lawyers from an important source of regulatory oversight, potentially enabling them to do things that would otherwise be prohibited like prosecuting a president’s political enemies. The point is that it is not clear where all this is going and what happens in these legal cases—and in the broader political environment—is going to significantly affect what kind of role the bar will play defending the rule of law going forward.
“My guess is that bar regulation is going to become the next frontier of rule-of-law conflict over the next four years because the bar stands as one of the few independent institutions in a position to stand up to government power.”
I also sadly think that Trump's decisive victory signals that traditional mechanisms of accountability, like criminal liability and professional discipline, will no longer function strong deterrents to future antidemocratic efforts.
RKJ: How has Fred Zacharias’ scholarship influenced your own writing and research?
I can’t tell you how honored I am to be associated with Fred Zacharias. When I was getting going in this field, I devoured Fred’s work, which put legal ethics in wider social context and never shied away from speaking speak truth to power. His work inspired me to think about the role of lawyers in democracy and I hope this article carries on his transformative legacy.
RKJ: What writing tips can you offer to other authors?
SC: Follow your passion for a subject wherever it leads, share your work early and often, and listen to people who disagree with you.
More reflections on Fred Zacharias’ life along with a complete list of the winners of the Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility follow below.
Fred Zacharias published at least 40 scholarly papers, several during his last year of life including:
The Myth of Self-Regulation, Minnesota Law Review (2009)
True Confessions About the Role of Lawyers in a Democracy, Fordham Law Review (2009)
Evidence Law and Ethics Rules, Professional Lawyer (2009)
The Duty to Avoid Wrongful Convictions: A Thought Experiment in the Regulation of Prosecutors (2009)(with Bruce Green)
Rationalizing Judicial Regulation of Lawyers, Ohio State Law Journal (2009)(with Bruce Green)
Integrity Ethics, Georgetown Journal of Legal Ethics (2009)
You can read these (and the other 30+) articles on his SSRN page.
Bruce Green (Fordham) wrote this tribute for the Legal Ethics Forum blog to announce the difficult news of his friend’s passing:
It is with sadness that I report the death of Professor Fred Zacharias on November 8, at the much too young age of 56, after a valiant, months’-long battle with a rare form of cancer. Fred was a good friend of mine and of many others in the legal ethics community as well as a leader in, and outstanding contributor to, the field.
Fred was a prolific scholar. It was my privilege to co-author nine articles with him over the past decade, and that was just a small proportion of his prodigious output. Fred was happy to tackle, and bring his insights to, virtually any issue in the field, and rarely turned down a chance to contribute to a conference or symposium. A former defense lawyer, Fred often brought his experiences from practice into his scholarship, while at the same time keeping current on academic writings in order to advance scholarly conversation in the field. Fred was among the handful of most frequently cited scholars of his generation.
As past chair of the AALS Professional Responsibility Section and regular contributor to the section’s newsletter, Fred sought to advance teaching no less than scholarship. Having attended many of Fred’s talks at the ABA National Conference and at academic conferences, I can attest that Fred took his role in the classroom as seriously as he took his writing. He also served the profession with dedication, including as a consultant on the Restatement of the Law Governing Lawyers and on other ALI projects and as a member of his city bar’s ethics committee. In recognition of his outstanding contributions, Fred received numerous distinctions at the University of San Diego School of Law, where he taught for almost two decades, including most recently as the Herzog Endowed Research Professor and, this summer, as the inaugural holder of the Donald Weckstein Summer Research Professorship.
On a personal note, among the things I most valued in our friendship were Fred’s generosity of spirit and his commitment to friends and family. Fred is survived by his wife, Sharon, and by his sons, Eric and Blake, and by his mother, brother and sister-in-law. Letters of condolence may be sent care of the law school. I mourn his passing.
-Bruce Green
You can read additional tributes here. Last, but certainly not least, here is a list of past winners of the prize. They are an impressive group of scholars.
2011
Alexandra Lahav, Portraits of Resistance: How Lawyers Respond to Unjust Proceedings, 57 UCLA L. Rev. 725 (2010)
Sung Hui Kim, Lawyer Exceptionalism in the Gatekeeping Wars, 63 SMU L. Rev. 73 (2010) (Honorable Mention)
2012
Michael Cassidy, Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures, 64 Vand. L. Rev. 101 (2011)
2013
Rebecca Aviel, The Boundary Claim's Caveat: Lawyers and Confidentiality Exceptionalism, 86 Tul. L. Rev. 1055 (2012)
2014
Dana Remus, Out of Practice: The Twenty-First Century Legal Profession, 63 Duke L.J. 1243 (2013)
Norman Spaulding, The Privilege of Probity: Forgotten Foundations of the Attorney-Client Privilege, 26 Geo. J. Legal Ethics 301 (2013) (Honorable Mention)
2015
Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 U.C. Davis L. Rev. 1591 (2014).
2016
Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 NYU L. Rev. 71 (2015)
Morris A. Ratner, Class Counsel as Litigation Funders, 28 Geo. J. Legal Ethics 271 (2015)
2017
Leslie C. Levin, Lawyers Going Bare and Clients Going Blind, 68 Fla. L. Rev. 1281 (2016)
Kate Levine, Who Shouldn't Prosecute the Police, 101 Iowa L. Rev. 1447 (2016)
2018
Robert W. Gordon, The Return of the Lawyer-Statesman?, 69 Stan. L. Rev. 1731 (2017)
2019
Eric S. Fish, Against Adversary Prosecution, 103 Iowa L. Rev. 1419 (2018)
2020
Michael Moffitt, Settlement Malpractice, 86 U. Chi. L. Rev. 1825 (2019)
Jessica A. Roth, The "New" District Court Activism in Criminal Justice Reform, 74 N.Y.U. Ann. Surv. Am. L. 277 (2019)
2021
Noah A. Rosenblum, Power-Conscious Professional Responsibility: Justice Black’s Unpublished Dissent and a Lost Alternative Approach to the Ethics of Cause Lawyering, 34 Geo. J. Legal Ethics 125 (2021)
Irene Oritseweyinmi Joe, Regulating Mass Prosecution, 53 U.C. Davis L. Rev. 1175 (2020) (Honorable Mention)
2022
W. Bradley Wendel, Lawyer Shaming, 2021 U. Ill. L. Rev. 175 (2021)
Angela Onwuachi-Willig & Anthony V. Alfieri, (Re)Framing Race in Civil Rights Lawyering, 130 Yale L.J. 2052 (2021)
2023
Matthew Kim, For Appearance's Sake: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession, 83 Ohio St. L.J. 529 (2022)
2024
Jon J. Lee, Private Sanctions, Public Harm?, 48 B.Y.U. L. Rev. 1255 (2023)
2025
Scott L. Cummings, Lawyers in Backsliding Democracy, 112 Cal. L. Rev. 513 (2024)
Nora Freeman Engstrom & James Stone, Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, 134 Yale L. J. __ (forthcoming 2024) (Honorable Mention)
I'll be back Monday with another Legal Ethics Roundup. Until then, thank you for reading and reflecting upon the memory of Fred Zacharias and his incredible legacy of scholarship that endures.