LER No. 14 - A Legal Ethics Eras Tour (10.30.23)
Your Monday morning tour of all things related to lawyer and judicial ethics.
Welcome
Thank you for being here. Welcome to what captivates, haunts, inspires, and surprises me every week in the world of legal ethics.
Each week the Legal Ethics Roundup is viewed by more than 1,000 readers across the United States and in 17 different countries. Subscribers include judges, lawyers, professors, state bar administrators, law students, government officials, and people who care about the future of our democracy.
If you haven’t subscribed yet, what’s stopping you? It’s free! And you’ll never miss the latest roundup. (Please also consider becoming a paid subscriber, which helps to support this weekly newsletter and unlocks special bonus content, along with the ability to post comments.)
A Legal Ethics Eras Tour
This week I’m mixing things up here at the Roundup. My 50th birthday was October 29, and I spent the weekend in the Utah desert to celebrate fifty trips around the sun.
Spending my birthday looking at this view meant I did not have time to pull together the top ten news highlights and the other items I typically curate each week.
Instead, I decided to borrow a page out of Taylor Swift’s playbook and create my own Legal Ethics Eras Tour. This week’s Roundup summarizes my scholarship over the past two decades. If an eras tour isn’t for you, don’t worry. The Roundup in its regular form will be waiting for you next Monday.
As it turns out, my eras as an academic coincide with Taylor Swift’s eras as an entertainer, though I never really thought about it until after seeing her Eras Tour this summer.
She released her first album in 2006, the same year I started my academic career at Michigan State University after practicing law at (then) Mayer, Brown & Platt and Hunton & Williams, and in the Charlottesville City Attorney’s Office. By the time I left MSU to join the University of Houston faculty as the Doherty Chair in Legal Ethics, I had gone from a part-time lecturer to a tenured professor.
Swift’s music is the soundtrack to my evolution as a professor and a writer, always playing in the background as I prepped lecture notes for class, delved into research, traveled the country digging through archives, rewrote drafts, and finalized page proofs. I even quote lyrics from her song Marjorie in a Fordham Law Review article published in early 2023. But that’s jumping ahead several eras…
Here’s what I was writing during each era.
Debut Era (2006-09)
As a first generation lawyer in my family, I did not follow the traditional path to becoming an academic because I didn’t know one existed. My first two publications as a law professor didn’t cite a single legal opinion, but instead explored ethical dilemmas faced by lawyers and judges as depicted in fiction novels.
In my article Beyond Atticus Finch: Lessons on Ethics and Morality from Lawyers and Judges in Postcolonial Literature (2008), I delved into the ethical conflicts confronted by literary characters like lawyer Hamilton Motsamai from Nobel Prize winner Nadine Gordimer’s The House Gun, the magistrate from Nobel Prize winner J. M. Coetzee’s Waiting for the Barbarians, the judge from Kiran Desai’s Inheritance of Loss (for which Desai won the 2006 Man Booker Prize for Fiction), and lawyer Vera Stark again from Gordimer in her book None to Accompany Me. Here’s what I concluded from their stories:
When the law collides with moral values the consequences are profound. Practitioners experience disillusionment and dissatisfaction. Students feel disconnected from their pre-lawyer selves. Non-lawyers perceive the profession as dishonest and deceitful. As this article reveals, postcolonial literature presents one possible tool in our effort to identify and reconcile the tension between lawyers’ obligations to the law and lawyers’ own moral compasses. … The inclusion of postcolonial works among the canon of law and literature expands the reader’s perspective into other cultures and worldviews.
I also wrote Resolving Ethical Dilemmas in James Welch’s The Indian Lawyer (2008-09) in my debut era, at the invitation of Matthew Fletcher (University of Michigan), Wenona Singel (Michigan State), and Kate Fort (Michigan State) for a conference they organized at Michigan State University where we were all colleagues at the time.
Fearless Era (2009-10)
The law review articles I wrote during this era turned out to be foundational for what are now two pillars of my scholarly work, one involving the field of legal ethics and one involving the field of gender (in)equality. At the time, however, I had no particular focus. I simply wrote about issues that interested me. I noticed an unusual number of cases involving lawyer and judicial ethics on the United States Supreme Court’s docket, so I wrote Prioritizing Professional Responsibility and the Legal Profession: A Preview of the United States Supreme Court's 2009-2010 Term (2009). And I’d read two important books documenting the (lack of) progress for gender equality in law, especially positions of leadership and power, so in The Progress of Women in the Legal Profession (2009) I reviewed Mary Jane Mossman’s The First Women Lawyers: A Comparative Study of Gender, Law and the Legal Professions, and Jean McKenzie Leiper’s Bar Codes: Women in the Legal Profession.
Speak Now Era (2010-12)
Coincidentally, Taylor’s “Speak Now” phase overlapped with my own pursuit of speech, where I examined the role of the First Amendment in expanding access to legal advice and services in four different law review articles: Contemplating Free Speech and Congressional Efforts to Constrain Legal Advice (2010), Attorney Advice and the First Amendment (2011), Why the Law Needs Music: Revisiting NAACP v. Button Through the Songs of Bob Dylan (2011), and Democratizing the Delivery of Legal Services (2012). (The latter happens to be my “greatest hit” according to the Social Science Research Network, with more than 800 downloads to date.) I continued to follow legal ethics cases on the Supreme Court’s docket in The Supreme Court’s Increased Attention to the Law of Lawyering: Mere Coincidence or Something More? (2010).
I also took on gender inequality in two articles co-authored with my friend Hannah Brenner Johnson (California Western), Rethinking Gender Equality in the Legal Profession's Pipeline to Power: A Study on Media Coverage of Supreme Court Nominees (2012) and Gender and the Legal Profession’s Pipeline to Power (2012). These articles planted the seeds for future books we eventually would write together as we raised kids, moved to different states across the country, secured tenure, and navigated divorces and new marriages. (I’m often asked how I managed to do it all. This essay from Lara Bazelon (University of San Francisco) explains a lot of it.)
Red Era (2012-14)
The Red album was called “the most consistently surprising of the lot” by the LA Times when it was released on October 22, 2012. My work took a surprising turn too, when I began teaching and writing about entrepreneurship and innovation in the delivery of legal services. I launched a summer program in London about twenty-first century law practice to study ethics reforms, and wrote op-eds like Why Law Students Should Be Thinking About Entrepreneurship and Innovation in Legal Services (2012) and law review articles including Democratizing Legal Education (2013) and Legal Information, the Consumer Law Market, and the First Amendment (2014). During this era, I also was invited by Russ Pearce (Fordham) to join him and Bruce Green (Fordham) on their casebook Professional Responsibility: A Contemporary Approach. This collaboration has been a professional joy and incredible learning experience, and along the way we’ve added several other co-authors: Swethaa Ballakrishnen (UC Irvine), Lonny Brown (Tennessee), Peter Joy (Washington University), Sung Hui Kim (UCLA), Ellen Murphy (Wake Forest), and Laurel Terry (Penn State Dickinson).
1989 Era (2014-17)
I’ve been listening to Taylor’s Version of 1989, which was just released on Friday, as I write this post. (My favorite of the five new vault tracks is “You’re Losing Me” which seems fitting.) This era brought a professional move, when I left my position as the Foster Swift Professor in Legal Ethics at Michigan State to join the University of Houston. I also published Lawyer Speech in the Regulatory State (2016) and The Commercialization of Legal Ethics (2016).
Reputation Era (2017-18)
This era for me brought out some of my most fierce criticisms of lawyer regulation and how it stifles the ability for many people to get the legal help they need. In The Legal Monopoly (2018), I argued for the application of antitrust law to reform rules that prevent competition and don’t protect consumers. In The Behavioral Economics of Lawyer Advertising: An Empirical Assessment (2019), a study I co-authored with Jim Hawkins (Houston), we exposed how lawyer websites don’t provide the information consumers most want and need. (Here’s a video of me presenting our findings at the Legal Services Corporation if you want the quick highlights.)
Lover Era (2018-20)
I spent almost a year of this era living in Melbourne, Australia, with my children and husband while on a Fulbright. (Coincidentally, again, Taylor’s “Lover” era matched my own “Loving” story, which I wrote about in Roundup No. 13.) Some of my writing was directly influenced by my time down under, like this essay Hidden Women of History: Flos Greig, Australia’s First Female Lawyer and Early Innovator (2019). My time as the Fulbright Distinguished Chair in Entrepreneurship and Innovation at the Royal Melbourne Institute of Technology University also allowed me to complete a number of projects, including a casebook with Hannah Brenner Johnson, Gender, Power, Law & Leadership. I also wrote a book chapter Becoming Visible (2019), in which I describe the influence of Soia Mentschikoff on my work. I walked by her portrait going to class as a student at the University of Chicago Law School in the late 1990s, but only truly got to know her a decade later after spending a week in her archives reading her research drafts, teaching notes, and love letters exchanged with Karl Llewellyn.
I collaborated with Ellen Murphy again on a series of case studies for our book Legal Ethics for the Real World: Building Skills Through Case Study. And my scholarship became even more grounded in the real world when I testified before the federal judiciary about reforms to address sexual harassment and other workplace misconduct. Read my full statement here and watch the testimony here.
Folklore and Evermore Era (2020-22)
These albums were a gift and a salve, written and released in the midst of the pandemic. The long-anticipated publication of my book Shortlisted: Women in the Shadows of the Supreme Court, written with Hannah Brenner Johnson, fell during the height of COVID-19’s isolation and lock-downs—May 2020. We made the best of it, canceling a nationwide book tour of in-person events (like a talk with Seventh Circuit U.S. Court of Appeals Judge Diane Wood at Chicago’s Seminary Co-Op) and instead speaking to virtual audiences across the country and around the globe. Sometimes our Zoom talks included treats, like these Shortlisted-themed chocolates King & Spaulding sent to viewers watching from their homes and offices.
(We did eventually get to speak with Judge Wood about the book. An interview between the three of us was published by Judicature in early 2023, and in August we finally all gathered in-person for a talk at the Seventh Circuit Judicial Conference.) I also wrote several pieces building on themes from the book, including Rest in Power: Judge Joan Dempsey Klein, Who Devoted Every Day to Eliminating Gender Discrimination (2021), How RBG Went from a ‘Moderate’ Choice to a Fiery Dissenter (2020), and Supreme Court Shortlists and the Women of Texas (2021).
This era brought me back to build on my earlier work, with three law review articles: Judicial Ethics in the #MeToo World (2021), Lawyer Ethics for Innovation (2021), and Lawyer Lies and Political Speech (2021). The last in this list, which examines the ethics of lies told by lawyers in the election fraud litigation by the former president, is part of what inspired me to launch this newsletter. I also testified again about legal ethics rules, this time in Congress to recommend reforms about financial disclosures for federal judges. (Read my full statement here and watch the testimony here.)
Midnights Era (2022-present)
Dear reader, we’ve finally reached the last era of our tour. Like Taylor, when I’m writing, “midnights become my afternoons.” That’s true for every publication described above. This era saw the paperback edition of Shortlisted: Women in the Shadows of the Supreme Court emerge with a new foreword by Melissa Murray (NYU) and a new preface from Hannah and me covering Justice Ruth Bader Ginsburg’s passing and the confirmation of Justice Amy Coney Barrett. Again, I wrote more op-eds drawn from the book, including Judging Women for the Supreme Court (2022) and Biden’s Pledge Atones for Decades of Shortchanging Black Women (2022).
I also wrote a tribute about my friend and mentor Deborah Rhode, whose life ended tragically early, Mentored: On Leaders, Legacies, and Legal Ethics (2023). I opened the article with these lyrics from the song Marjorie on the Evermore album: “What died didn't stay dead. You’re alive, your alive in my head … I know better. But you’re still around.”
Next up? My latest book Law Democratized: A Blueprint for Solving the Justice Crisis hits the shelves January 9, 2024. And I’ll be taking Law Democratized on a world tour of its own, hopefully connecting with many of you in-person or virtually over the coming year!
Thank you for indulging me on this week’s Legal Ethics Eras Tour, and for being part of this latest era in my scholarly work on lawyer and judicial ethics. I love being able to share with you the whirlwind of news, reading recommendations, reforms, historical moments, pop culture references, current events, job opportunities, and more that fills my mind each week in this important field.
When I launched the newsletter in August, I told myself I would commit to 50 weeks to commemorate my 50th birthday this year. I’m grateful you’ve joined me on my next trip around the sun.
Keep in Touch
Feedback? This weekly roundup is a work-in-progress. Please share feedback about what you love (or don’t love) and what you’d like to see here in the future.
News tips? Announcements? Events? A job to post? Reading recommendations? Email legalethics@substack.com - but be sure to subscribe first, otherwise the email won’t be delivered.
Teaching Professional Responsibility or Legal Ethics? Check out the companion blog for my casebook Professional Responsibility: A Contemporary Approach for teaching ideas and other resources.
Have a magnificent Monday. See you next week!