Legal Ethics Roundup No. 10 - SCOTUS Ethics Docket, 'Manufacturing' Lawsuits, Judge Celebration Ban (Again), Whistleblower Return, The World Needs More Lawyers, Marshall Anniversary & More (10.02.23)

SCOTUS Ethics Docket, "Manufacturing" Lawsuits, No Withdrawal for Cancer, Judge Celebration Ban (Again), Recusal Denied, WI Impeachment, Whistleblowers Return, "The World Needs More Lawyers" & More

Oct 02, 2023

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Highlights from Last Week - Top Ten Headlines

It’s official — the past couple of weeks took us over the top, bursting at the seams with headlines about lawyers, judges, and ethics. You now get a top ten list, rather than five headlines (or six or seven). Let’s see how long this lasts?

#1 SCOTUS 2023 Term Opens with Five Cases on the Docket Involving Legal Ethics. The Supreme Court opens today - it’s First Monday! The Court has agreed to hear just a few dozen cases to date, and five involve legal ethics issues. You can read all about them in last week’s Bonus Content No. 3, and I’ll cover them individually in the roundup as the Court hears them. It’s not unusual to see a handful of cases involving legal ethics at the Supreme Court. The high-water mark, by my count, happened during the 2009 Term - seventeen! My article “The Supreme Court’s Increased Attention to the Law of Lawyering: Mere Coincidence or Something More?” cataloged and analyzed those cases, if you want to learn more about them. If you’re wondering what happened after 2009, I haven’t kept a perfect count. But, in the 2010 Term the Supreme Court decided eight cases involving legal ethics and opened with seven during the 2011 Term. We’ve not since seen numbers like in 2009, however.

#2 More Wisconsin Supreme Court Impeachment Drama; Could it Extend to Other States with Elected Judiciaries? From the Wisconsin State Journal: “The Wisconsin Supreme Court on Tuesday rejected a lawsuit liberals filed earlier this month seeking to prohibit the Legislature from impeaching liberal Justice Janet Protasiewicz.” (H/T Howard Bashman, How Appealing) For more background, see Legal Ethics Roundup No.7. As noted in Bloomberg Law’s coverage: “If the lawmakers calling for her to be removed before she rules on any cases get their way, it would be a first in US history, according to ethics scholars.” The Bloomberg article cites Douglas Keith (Brennan Center for Justice) as predicting that “legislators’ calls to oust judges—using ethics as a sword—will increase because the policy stakes are so high.”

#3 Fifty Members of Congress Request Thomas’ Recusal. After the latest ProPublica reporting about Justice Clarence Thomas and his attendance at Koch Brothers events (see last week’s roundup, if you somehow missed this news), fifty members of the House of Representatives (all Democrats) sent him a letter requesting that he recuse himself from hearing the upcoming case Loper Bright Enterprises v. Gina Raimondo, which threatens to undermine the deference courts typically give to federal agencies, otherwise known as the “Chevron doctrine.”

#4 Recusal Denied; Sanctions Imposed. As I predicted in Roundup No. 8, here’s the headline from the New York Times: “Judge Tanya Chutkan rejected arguments from the former president’s legal team that she could not fairly conduct his trial on federal charges of plotting to overturn the 2020 election.” Read more here. In a different case brought by the New York Attorney General, five attorneys for the former president were “ordered to pay $7,500 each to a state organization that reimburses clients whose attorneys misused funds” last week according to the Washington Post. The judge in that matter also ruled that “the former president and his company committed fraud by inflating his net worth in business transactions, narrowing the scope of what the state’s attorney general must prove at an upcoming civil trial.” More on that here.

#5 Maybe SCOTUS Doesn’t Need an Ethics Code? Two essays published last week push back against all of the calls for the Supreme Court to adopt an ethics code. While I still think Supreme Court justices should, at a minimum, follow the same ethics rules as all other federal judges, these pieces did make me pause and reflect. Over at Slate, Steven Lubet (Northwestern University Pritzker School of Law) wrote:

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts took it upon himself to explain that the Supreme Court, unlike every other court in the U.S., had “no reason to adopt the Code of Conduct as its definitive source of ethical guidance.” I disagreed strongly at the time, as have many observers ever since, who have demanded that the court adopt a set of written ethics rules. But I am beginning to have my doubts. It may turn out that Roberts was right, although not for his stated reason that his colleagues are “jurists of exceptional integrity and [unquestioned] character and fitness.”
The real reason to stop hoping for a Supreme Court code of ethics is that it would probably have no meaningful effect on the justices who need it most. They would simply ignore or evade it, just as they have disregarded existing ethics legislation.

You can read more from Lubet here, but that excerpt gives you the gist. Over at The Atlantic, David Lat (Original Jurisdiction) and Zachary Baron Shemtob (Lankler Siffert & Wohl) ultimately agree an ethics code is needed but urge us “to proceed with caution and humility when advocating for what such a code should contain, tempering today’s populist sympathies with an understanding of history.” Read their full piece at this link.

#6 SCOTX Allows AG Paxton Whistleblower Lawsuit; But Backpay? From the Austin American Statesman: “The Texas Supreme Court ruled Friday that a whistleblower lawsuit between state Attorney General Ken Paxton and former employees of his office must be allowed to move forward.” Meanwhile Paxton is seeking backpay for the time he was suspended from office during the impeachment process.

#7 Connecticut Joins California Advising Judges Not to Celebrate. From Law360: “Judges should not attend a local bar association's annual judges' reception hosted and paid for by a law firm because of the ethical rules.” This aligns with a California advisory opinion issued last month, reported on in Roundup No. 6.

#8 Motion to Withdraw to Care for Mother with Cancer Denied. Should an attorney be allowed to withdraw if she feels caring for her mother, recently diagnosed with cancer, would prevent her from an appropriate representation of her client? I would hope so. But the answer is “no,” at least according to the U.S. Court of Appeals for the Fourth Circuit, which upheld the district court’s denial. Opinion here. (H/T Justin Eisele)

#9 Religious Training Sanction Paused. The excellent reporting from Chris Geidner (LawDork) on U.S. District Judge Brantley Starr’s order requiring three in-house lawyers for Southwest Airlines to attend religious training continued this week with the news that the Fifth Circuit put the sanction on hold, at least for now. Read his reporting at this link. For past coverage here, see Roundup No. 4.

#10 Fresh Faces at SCOTUS = Increased Diversity Among Advocates? From Law360: “Solo practitioner Howard Bashman had almost given up all hope on his goal of arguing before the U.S. Supreme Court, but then the justices agreed in March to hear an admiralty law case over choice-of-law provisions in which he represents a yacht owner challenging the denial of an insurance claim. … Bashman is one of 25 first-time advocates slated to argue before the high court so far this term. … The term's slate of litigators includes more than double as many first-time advocates than there were this time last term, and eight more than the number of first-time advocates there were at this time in the court's October 2021 term.” Other first-timers include Saad Ahmad (Saad Ahmad and Associates) and partner Jaime Santos (Goodwin Proctor LLP). Read the full article here. I am curious to see whether this increases the number of female advocates. As Adam Liptak reported earlier this year, during the 2022 Term “just 18 percent of arguments were presented by women” and during the 2021 Term “the figure was 13 percent.”

Regulatory Reform Watch - “The World Needs More Lawyers”

Back after a brief hiatus, our “Regulatory Reforms Watch” material for this week comes thanks to a tip I received from reader Lucian Pera (Adams and Reese LLP). He sent me what he describes as “a first-of-its-kind article: a position paper by a Federalist Society group that calls for occupational licensure reform of the legal profession.” Here’s an excerpt from “The World Needs More Lawyers,” authored by Shoshana Weissmann, Daniel Greenberg, Luke Wake, Braden Boucek, and Jonathan Riches:

The American legal profession, as well as those it serves, would benefit from lowering the barriers to entry to the practice of law. Several licensing barriers unnecessarily contribute to the high cost of legal services, which inhibit access to justice for ordinary Americans. In some respects, legal licensure is categorically distinct from the licensure of other highly regulated professions. This suggests that a particular focus on legal licensure may be appropriate. We therefore explore the implications of modest reforms that would advance the public interest, with an eye to the encouragement of competitive markets in legal services, and the protection and preservation of the fiduciary nature of legal services.

Read the full piece at this link. I am, admittedly, an advocate for all of their recommendations. Many of them appear in my forthcoming book Law Democratized: A Blueprint for Solving the Justice Crisis. As the authors conclude:

[R]eform doesn’t have to mean eliminating licensure. There are many modest reform options that would reduce unnecessary barriers to entry into the profession while advancing the interests of consumers who need affordable access to legal services. Given the compelling need to ensure opportunities for access to justice for all, policy makers would be wise—at a minimum—to question whether the status quo is serving the public good.

I’ve always thought that lawyer licensure reform is an issue everyone can get behind, regardless of politics or labels of being conservative or liberal or libertarian. And this position paper helps prove that point.

This Week in Ethics History

October 2, 1967. Fifty-six years ago Justice Thurgood Marshall was sworn in after many grueling, racially-driven questions at his confirmation hearing. The vote was 69 to 11. He is of course best known for being the first African American to join the Court after an extraordinary career as a civil rights lawyer for the NAACP and service on the U.S. Court of Appeals for the Second Circuit as well as Solicitor General. But what you probably don’t know, and highly relevant here at the Legal Ethics Roundup, is that some of the nation’s greatest legal ethics scholars served as his law clerks. These include my co-author Bruce Green (Fordham Law), former dean Margaret Raymond (Wisconsin Law), and my friends and mentors David Wilkins (Harvard Law) and Deborah Rhode, who passed away much too soon in 2021 after an extraordinary career at Stanford Law as the nation’s most-cited legal ethics scholar. When I married my husband on July 4, 2020 (“our own Loving story” according to the NYT), Deborah gifted us this photo, which she took during her clerkship, capturing Justice Marshall and Justice William Brennan on a walk together.

Justices Marshall and Brennan at the U.S. Supreme Court, 1979 (photo by Deborah Rhode)

Lawyer(s) of the Week

Are you listening to the Lawyers Behaving Badly podcast? If not, you should. Last week, collaborators and lawyers Karen Delaney and Jennifer Judge celebrated more than 200,000 downloads in less than a year since their launch.

Here’s how they describe their podcast: “Join Jennifer and KP as they live, laugh, and watch the world burn. Two longtime lawyers, Jenn and KP talk about lawsuits in the news, current events, and of course, lawyers behaving badly. As professional mess enthusiasts, KP and Jenn love digging into messy situations that don’t involve them and probably are none of their business.” I’ve learned a lot, and laughed a lot, listening to this podcast, which makes this super-smart, refreshingly witty duo our lawyers of the week. Download episodes for yourself at this link.

Judge(s) of the Week

Five of the seven members of the Michigan Supreme Court supported an order issued last week mandating that all Michigan judges address people who appear in their courtrooms by their "designated salutation or personal pronouns, or other respectful means" such as plaintiff, defendant, counselor, or similar gender-neutral terms. The rule becomes effective January 1. Two justices wrote concurring opinions to explain their positions, one of whom was Justice Kyra Bolden, the state’s first African American female justice appointed by Governor Gretchen Whitmer and sworn in on January 1 of this year. She wrote that the requirement "mirrors the expectations found in our judicial canons." Specifically:

The judicial canons already require treating every person with courtesy and respect without regard to a person's race, gender, or other personal protected characteristic. This amendment is merely a more detailed example of how judges must act to meet the requirements articulated in the canons, and it is in line with our antidiscrimination caselaw, statutes, and policies.

Justice Bolden also explained one of the benefits of this new rule:

Appearing before a court can oftentimes be intimidating. This amendment helps to break down some of the fear, intimidation, and anxiety parties may have when stepping into courtrooms. As Justice Welch has stated, “words matter and . . . a small change to an opinion, even if unrelated to the merits, can go a long way toward ensuring our courts are viewed as open and fair to all who appear before them.” People v. Gobrick, 510 Mich. 1029, 1030 (2022) (Welch, J., concurring).

Justice Elizabeth Welch in her concurrence wrote: “We serve the entire public and are required to treat those who come before us with civility and respect.” She also addressed the history of honorifics and the reality that “courts and court staff must conduct business in a way that is cognizant of changes in language and societal norms.” She noted:

It was not that long ago that many judges would not permit a female attorney to use the salutation “Ms.” instead of the unmarried “Miss” or married “Mrs.” The salutation wasthe subject of much debate, which today has largely been forgotten. Later generations of attorneys would likely be confounded by the notion that women in court had to use a salutation that indicated marital status while men faced no such requirement. Society has, thankfully, long moved past that debate. Judges no longer have to know the marital status of female attorneys appearing before them in order to professionally address them in court. Today, requiring the use of “Miss” or “Mrs.” in court would be not just antiquated, but also disrespectful and discriminatory. Extending the use of gender neutral or personally specified pronouns to litigants or parties reflects another societal shift.

Indeed, as Hannah Johnson and I explained in a 2020 SCOTUSblog interview with Ron Collins about research from our book Shortlisted: Women in the Shadows of the Supreme Court:

Historically, Supreme Court justices were referred to as “Mr. Justice” both on the bench and on the nameplates on their office doors. U.S. Court of Appeals for the Sixth Circuit Judge Cornelia Kennedy found herself participating in a law school moot court competition with Justice John Paul Stevens. The student participants repeatedly referred to Kennedy as “Madam Justice.” Kennedy became irritated with this reference and questioned the need for the gendered honorific rather than simply the word “Justice.” This interlude sparked something in Stevens, who took the message back to Washington and, long story short, convinced the justices that it was time to remove the honorific “Mr.” from their chamber doors as well as from their references to each other.

For their commitment to treat people respectfully, Justices Bolden and Welch along with their colleagues Chief Justice Elizabeth Clement, Justice Richard Bernstein, and Justice Megan Cavanaugh are our judges of the week.

Read the full order at https://bit.ly/LegalEthicsRoundup

Accountability in Our Democracy

This part of the roundup focuses on the legal profession’s accountability in our democracy. We began by looking at the ways lawyers can be held accountable through the discipline system and malpractice claims, and then we examined the First Amendment and lies told by lawyers. Three weeks ago we focused on non-governmental organizations with a mission to reform lawyer and judicial ethics and two weeks ago we confirmed that yes, Congress does have the authority to hold the Supreme Court accountable for ethics issues. Last week we took up reforms to the character and fitness process in lawyer licensing.

This week, I’m wondering where the line should be drawn when lawyers “manufacture” lawsuits. Washington Post reporters Beth Reinhard and Jon Swaine wrote an article last week exposing these “inside tactics.” Here’s an excerpt:

Before this summer’s landmark Supreme Court ruling that a Christian web designer in Colorado had the right to refuse to work on same-sex weddings, the legal advocacy group behind the case had spent nearly a decade laying the groundwork through similar lawsuits filed around the country. …
But an examination by The Washington Post of court filings, company records and other materials found that two of the three vendors cited in [the Christian nonprofit Alliance Defending Freedom] ADF’s September 2021 petition had stopped working on weddings, and the other did not photograph any weddings for two years. Three additional vendors represented by ADF in similar lawsuits elsewhere also abandoned or sharply cut back their work on weddings after they sued local authorities for the right to reject same-sex couples, The Post found.
Such developments led an opposing lawyer and a judge in two of the cases to separately question whether ADF’s plaintiffs truly intended to exercise the rights they sued for — or if their claims were instead manufactured to be test cases in a national litigation campaign.

The article (link here) doesn’t mention legal ethics outright, but it raises questions about when, if ever, lawyers should be prohibited from manufacturing lawsuits to test laws. The Washington Post quoted a civil rights attorney for the ACLU describing ADF’s role “as unusual and manipulative,” but also offered a counter-perspective from the general counsel of First Liberty Institute who said: “That’s just lawyering.”

To be sure, “testers” are regularly used to enforce civil rights laws and “ideal plaintiffs” are often sought by liberal and conservative groups in litigation. The professional conduct rules don’t offer a clear answer here. A 2021 law review article “Lawyer Speech, Investigative Deception, and the First Amendment,” by Rebecca Aviel and Alan Chen (both professors at the University of Denver Sturm College of Law) sheds some light. Here’s an excerpt:

As expressed in Rule 8.4(c) of the Model Rules of Professional Conduct, a lawyer commits professional misconduct if she engages “in conduct involving dishonesty, fraud, deceit or misrepresentation.” While the rule addresses a wide range of fraudulent conduct that should unquestionably be prohibited to protect clients, courts, and the public at large, it is written in a sufficiently capacious manner to sweep in the actions of lawyers who are supervising investigators using deception as part of lawful, undercover activity. These lawyers might be prosecutors overseeing law enforcement “sting” operations, civil rights advocates working with “testers” to uncover conduct that violates anti-discrimination laws, or animal rights attorneys and labor lawyers guiding undercover whistleblowers trying to expose unethical, inhumane practices in the animal agricultural industry. …
Recognizing the adverse policy implications of punishing lawyers engaged in this type of activity, some jurisdictions have amended their ethics rules to carve out an exemption for attorneys who are working on such investigations. In other jurisdictions, courts and regulatory bodies have declined to sanction lawyers engaged in such activity under Rule 8.4. In the majority of states, however, professional conduct rules continue to place lawyers who work with undercover investigators at great risk of professional discipline, deterring them from doing so or requiring significant restructuring of their practices.

In the context of undercover investigations, they argue for “a First Amendment right, consistent with the rights of others to engage in investigative deceptions, [to] provide a uniform rule across jurisdictions.” You can download the full article here. Their analysis does not, however, exactly cover the kind of litigation “manufacturing” documented by the Washington Post. Admittedly, I have more questions than answers myself at this point, but I do believe we need to be thinking about this kind of “lawyering” and examining whether more concrete ethics rules are needed.

Legal Ethics in Pop Culture

A few weeks ago reader George Beaton, author of the New Law New Rules, tipped me off that the U.S. Postal Service planned to release a tribute stamp for Justice Ruth Bader Ginsburg. (Side note. I love that one of my Australian colleagues was the first to bring up this news! One of the surprises from living in Melbourne for seven months on a Fulbright was how much Australians follow American culture and politics. Our neighborhood ice cream shop even served “Obamarama” ice cream—pb&j flavored—though he was no longer president at the time.) I waited until this week to share the RBG stamp will all of you because its official debut is today, October 2, coinciding with the opening of the Supreme Court’s 2023 Term! At 6PM eastern, her stamp will be unveiled in a ceremony at the National Portrait Gallery. (Another side note. This is one of my favorite museums. As a summer associate at Debevoise and Plimpton’s D.C. office back in 1998, I often wandered through the galleries during my lunch break. My most recent visit was in January 2020, when I took my kids. Coincidentally, we all heard RBG speak during that same trip. She keynoted the Association of American Law Schools annual meeting.)

As the most pop-culture-honored justice ever, it only seems fitting that RBG gets a stamp in addition to RBG-themed mugs, t-shirts, air fresheners, and much more. But how is this linked to legal ethics you may ask? There are a range of themes I could explore, but here’s a relatively unknown piece written by RBG that relates to many topics we’ve delved into here at the roundup. In 1996, she published “Supreme Court Discourse on the Good Behavior of Lawyers; Leeway Within Limits” with the Drake Law Review as part of remarks she delivered at the law school. Here’s an excerpt:

Because a carpenter should stick to her craft, I will address in this lecture Supreme Court decisions reflecting the justices' perceptions of how lawyers work or should work. In the array of cases, one lead theme repeats: lawyers representing private parties are officers of the court, not officers of the government. They must be independent professionals, equipped to perform their part effectively in the interest of their clients, without fear of official reprisal for diligent, honorable service. The Supreme Court, in the main, has appreciated that lawyers must have leeway to be zealous in the representation of clients, but it has also recognized the need for limitations, for rules that preserve the order essential to a system of justice.

Read the full piece here. And buy your RBG stamps here.

Get Hired

Did you miss the 40+ job postings from previous weeks? Find them all here.

Counsel, Democracy Program, Brennan Center for Justice — NYC. Not 100% ethics-related, but a very cool opportunity that undoubtedly will involve legal ethics issues. The Brennan Center is seeking “a talented attorney to join our Democracy Program, which seeks to expand access to the franchise, counter political entrenchment, respond to regressive jurisprudence, and reform our courts and other democratic institutions, through litigation, legal strategy development, policy campaigns, and strategic communications.” More details here.
Enforcement Counsel, Missouri Ethics Commission — Jefferson City. Primarily responsible for handling administrative cases before the Commission. More details here.
Lateral Conflicts Attorney, Lewis Brisbois Bisgaard & Smith — Dallas. Responsible for reviewing conflict check reports and identifying, advising, analyzing and resolving potential conflicts of interest and working directly with attorneys to clear conflicts related to the hiring of new partners, associates, paralegals, and other firm hires. More details here.
Supervisory Attorney-Advisor (Deputy Assistant General Counsel, Ethics and Appeals Division, Department of Housing and Urban Development — Washington DC. Independently advise high-level agency officials on ethics rules, regulations, and principles. Provide ethics briefings and training, including annual ethics training. More details here.

Upcoming Ethics Events & Other Announcements

Did you miss an announcement from previous weeks? Find them all here.

October 3, 4 & 6 — John Eastman California State Bar Hearing. Members of the public are permitted to watch the proceedings live, which are set to continue these dates, with John Droz and Kurt Olsen both testifying on October 3. The link to watch is here. (Past coverage of the Eastman hearing, including John Yoo’s testimony, is in my Bonus Content No. 2 post.)
October 4 — Supreme Court Oral Argument in Acheson Hotels LLC v. Laufer. This is the first of the five cases on the Court’s docket this term (so far, at least) involving legal ethics issues. While the primary focus is on standing for so-called “testers” in civil rights cases, the plaintiff has dealt with an array of unethical lawyers and that may impact her case. You can listen to the argument live at this link. I’ll provide full coverage in next week’s roundup. If you want to learn more now, check out my Bonus Content No. 3 post “Legal Ethics on Upcoming SCOTUS Docket.”
October 5 — Closing the Justice Gap Webinar. Join virtually from 12-1pm CST to learn about the “justice gap” in our country and how the Legal Services Corporation, leaders from across industries, legal aid organizations, and you can come together to close the gap. Speakers include: Hari Osofsky, Dean of Northwestern Pritzker School of Law; John Gallo, CEO and Executive Director of Legal Aid Chicago; David Layfer & Josh Meltzer, members of the Legal Services Corporation’s Emerging Leaders Council. Link for free registration here.
October 5 — Navigating the Future of Legal Artificial Intelligence: Ethics, Law and Policy Webinar Series, Sheppard Mullin. Presenters James Gatto and Jerry Levine will tackle the ethical dimensions of lawyers using generative AI (GenAI) in connection with providing legal services in this virtual presentation. 11AM Eastern. With approved CLE ethics credit. Link for free registration here.

Wisdom for the Week

“Where you see wrong or inequality or injustice, speak out, because this is your country. This is your democracy. Make it. Protect it. Pass it on.” — Justice Thurgood Marshall, commencement address at the University of Virginia, 1978

Keep in Touch

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Have a magnificent Monday!

Legal Ethics Roundup