Legal Ethics Roundup No. 12 - Judge Resigns Over Romance, South Africa Ethics, Jamie Foxx as Lawyer Willie Gary, Whitehouse Writes (Again), Fake Lawyer?, Fake Opinion, Jobs/Events & More (10.16.23)
Your Monday morning tour of all things related to lawyer and judicial ethics.
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Highlights from Last Week - Top Ten Headlines
It’s official — the past few 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 Law Student Loses Job Offer After Statement About Palestine. Over at Original Jurisdiction, David Lat offers a thoughtful analysis about a statement issued by the NYU Law Student Bar Association president. Lat begins with a view that I share: “Like an untold number of people around the world, I was unspeakably shocked, sickened, and saddened by Hamas’s horrific attacks on more than 20 sites in southern Israel, which took the lives of more than 1,000 people (and counting). While the Israel-Palestine conflict is complicated, I see the appropriate reaction to these attacks as simple: unequivocal condemnation. And while legitimate criticisms can be leveled against the Israeli government, now is not the time to make them.” He goes on to describe the student’s statement and the fallout. Read Lat’s full post here.
#2 New Leader for Illinois ARDC. The Attorney Registration & Disciplinary Commission, the Illinois Supreme Court agency which regulates lawyers in that state, will soon have a new administrator. The court appointed attorney Lea S. Gutierrez, effective October 23, 2023. (I happened to catch this news when renewing my Illinois law license this week.) Gutierrez is the second woman and first person of color to hold the office. Read more about her historic appointment here.
#3 North Carolina Seeks to Dismiss Justice Earls’ First Amendment Lawsuit. From the Carolina Journal: “The North Carolina Judicial Standards Commission is asking a federal court to dismiss state Supreme Court Justice Anita Earls’ First Amendment lawsuit against the group … [Her] Aug. 29 lawsuit argued that a commission investigation into her published comments threatened to ‘chill’ the justice’s speech about matters of public concern.” Read the full article here. Recall from Roundup No. 6 that Earls sued the Commission after they opened an investigation into her public comments about the lack of diversity in the North Carolina court system. She isn’t wrong. As I noted in Roundup No. 7, according to a recent Bloomberg Law report, numerous all-white benches persist in courts across the nation. Among the findings: “Twenty-five districts across the U.S. have never had a non-white judge. Almost half are districts that serve their entire state.”
#4 Judicial Transparency in Stock Transactions and Financial Disclosures Delayed. From Bloomberg News: “Delays in posting stock transactions and other financial disclosures by U.S. judges to a new database are limiting the utility of a tool designed to improve public transparency of the court system, watchdogs said,” citing the work of Gabe Roth’s Fix the Court. Read the full coverage here. The Courthouse Ethics and Transparency Act, which became effective in May 2022, requires “the judiciary to establish an online database of publicly accessible financial disclosures submitted by life-tenured judges, including Supreme Court justices, as well as bankruptcy and magistrate judges.” I testified in support of this legislation in October 2021. Read more about my Congressional testimony in Roundup No. 7.
#5 SCOTUS Declines to Review PA Lawyer Sanctions in 2020 Election Case. From CNN: “The Supreme Court on Tuesday rejected an emergency bid from Republican election officials in a Pennsylvania county to freeze sanctions related to a dispute about voting equipment and the 2020 election. … [The Pennsylvania Supreme Court] ordered the county officials to pay attorney’s fees and referred their attorney Thomas Carroll to Pennsylvania’s attorney disciplinary board. … The commissioners had asked the U.S. Supreme Court to freeze those sanctions while the justices considered whether to take up the commissioners’ appeal. The court rejected the request.” Read the full article here.
#6 A “Fake Opinion” from the Fifth Circuit. From Chris Geidner at Law Dork: “Within 24 hours of my having written about the extremism of the U.S. Court of Appeals for the Fifth Circuit, Judge Jerry E. Smith published a fake opinion — ‘the Fifth Circuit panel opinion that should have been issued’ — as an attachment to his dissent in a case where he was on the losing side of a 2-1 vote. In that vote, the Fifth Circuit refused Texas’s request to lift a stay of execution that a district court had granted on Oct. 6 to Jedidiah Murphy. Texas wants to execute Murphy on Tuesday for the 2000 killing of 80-year-old Bertie Lee Cunningham, but, for now, the federal courts will not let them do so.” Read Geidner’s full coverage here.
#7 Federal Bankruptcy Judge Resigns Over Romantic Relationship. Business Insider recently reported that David R. Jones, chief bankruptcy judge for the Southern District of Texas, “was in a previously undisclosed romantic relationship with attorney Elizabeth Freeman, who had worked as his law clerk and as a partner at Jackson Walker, a Texas-based law firm that had cases before Jones' court.” By Sunday, Jones had resigned in what Business Insider called “a stunning turn of events for one of the country's most powerful bankruptcy judges who has overseen a series of high-profile cases during his tenure. Chief District Judge Randy Crane of the Southern District of Texas confirmed Jones' resignation in an interview with Insider. He said that the decision would go into effect on November 15. The more than 3,000 cases that were on Jones' docket will be redistributed to other judges, Crane added.” Read the full article here. According to coverage by Reuters, “four ethics experts” agreed that Jones “should have disclosed the relationship or recused himself” in cases where Freeman’s “former firm had major cases before him.”
#8 Oklahoma Judge Faces Discipline for Courtroom Distractions. From the ABA Journal: “Judge displayed photos of male lawyers in hot pink chairs, exchanged 500-plus texts during murder trial, petition says.” Read more here.
#9 Sen. Whitehouse Supplements His Ethics Complaint Against Alito. Senator Sheldon Whitehouse was our “lawyer of the week” in Roundup No. 7 for sending a letter to Chief Justice John Roberts “to lodge an ethics complaint against Supreme Court Justice Samuel Alito for violating several canons of judicial ethics.” As I told Law360 at the time, this “highly unusual” action "strikes at the heart of the debate about separation of powers." Last week, Whitehouse wrote Roberts again, this time complaining about “a letter from a billionaire’s lawyer citing Justice Alito’s comments as justification for declining to substantively respond to congressional oversight requests.” Read the full letter from Whitehouse here.
#10 Judicial Ethics in South Africa. Calls for ethics reform are not unique to the U.S. Supreme Court. Headlines out of South Africa last week reported that while a judicial ethics code and an enforcement process exist through a body called the Judicial Service Commission, “[p]roblems with the process have serious implications for public confidence in the judiciary, and for the rule of law and constitutional democracy. … At the time of writing, no judge has yet been removed from office through this process.” Unlike the U.S. Supreme Court, justices on the Constitutional Court of South Africa (the nation’s highest court) must follow a code of ethics. Read more here.
Regulatory Reform Watch
This week’s focus is on the work by state bar associations to address regulatory reform for ethical issues surrounding generative artificial intelligence. Consider this excerpt from a JD Supra article titled “State Bar Associations Escalate Work on Ethical Issues Raised by Artificial Intelligence” published last week:
Already this year at least a half dozen state bar workgroups have been formed, with the sole purpose of providing much-needed ethical guidance to lawyers who have already – or will soon – be using generative AI in their law practices. There is urgency to these efforts. Some groups have mandates to produce actionable guidance for lawyers by year’s end.
These workgroups include the Florida Bar Association’s Special Committee on AI Tools & Resources which “formed in late September … with the objective of proposing changes to the Florida professional ethics code as soon as December 2023.” According to JD Supra, one of the committee’s “responsibilities is to provide guidance that ensures the state’s legal community can extract value from artificial intelligence while maintaining the lawyer’s independent legal judgment.” Just this past week, the Florida Board Review Committee on Professional Ethics announced that on November 30 it “will consider adopting a proposed advisory opinion at the direction of The Florida Bar Board of Governors” based upon the Special Committee’s work. The proposed advisory opinion will address:
1) Whether a lawyer is required to obtain a client’s informed consent to use generative AI in the client’s representation;
2) Whether a lawyer is required to supervise generative AI and other similar large language model-based technology pursuant to the standard applicable to non-lawyer assistants;
3) The ethical limitations and conditions that apply to a lawyer’s fees and costs when a lawyer uses generative AI or other similar large language model-based technology in providing legal services, including whether a lawyer must revise their fees to reflect an increase in efficiency due to the use of AI technology and whether a lawyer may charge clients for the time spent learning to use AI technology more effectively;
4) May a law firm advertise that its private and/or inhouse generative AI technology is objectively superior or unique when compared to those used by other lawyers or providers; and
5) May a lawyer instruct or encourage clients to create and rely upon due diligence reports generated solely by AI technology?
Read more about the Florida Board’s plans here.
Other states with active workgroups and task forces include California, Illinois, Kentucky, Minnesota, New Jersey, New York, and Texas. This is in addition to the work being done by the American Bar Association through the Task Force on Law and Artificial Intelligence commissioned by President Mary Smith. See Roundup No. 6 for more information about the ABA’s work, and read the full coverage from JD Supra here.
This Week in Ethics History
October 17, 1943. Vilma Socorro Martinez was born in San Antonio, Texas. Her commitment to civil rights and legal ethics runs throughout her career which began at the NAACP Legal Defense and Educational Fund, where she worked on school desegregation and public accommodation cases. She represented the petitioner in the 1971 landmark U.S. Supreme Court case, Griggs v. Duke Power, which helped establish the doctrine of affirmative action in employment. She served as the first female president of the Mexican American Legal Defense and Educational Fund and was the first female U.S. Ambassador to Argentina. Read more about her under “Wisdom for the Week,” below.
Recommended Reading — Recent Scholarship
Should judges be allowed to also practice law? I didn’t realize that many jurisdictions let part-time judges supplement their income by also maintaining a law practice. Read on to learn about the conflicts of interest inherent in this sort of arrangement.
Judges as Lawyers by Deirdre M. Smith, University of Maine School of Law, forthcoming in the Georgetown Journal of Legal Ethics. From the abstract:
The integrity of the American legal system and thereby of our democracy rests on the shoulders of the judiciary. It is widely understood that the roles of jurist and advocate are incompatible and that the fairness and legitimacy of our court systems require maintaining clear boundaries between those roles. Accordingly, an essential feature of every state’s judicial conduct code is a prohibition on the practice of law by judges. However, many states have carved out exceptions to this prohibition to allow part-time judges sitting in low-level trial courts to supplement their modest judicial compensation by practicing law. The rationale for these exceptions neither cancels nor addresses the problems inherent in allowing judges to practice law. Rather, the real-world impact of the exceptions to the prohibition underscores the importance of the default restriction on law practice by judges. At a minimum, permitting lawyer-judges gives rise to potential conflicts and practical challenges. Other consequences are more unsettling, as when a person holding both roles uses their judicial authority to benefit a private client or to gain other personal advantage. Aside from the potential impact of the dual role in particular cases, such permission creates awkwardness and uncertainty for the attorneys, judges, and litigants with whom the lawyer-judges interact, thereby undermining public confidence in the courts in which they appear as attorneys and sit as judges. Conversely, full-time judges, who do not have their attention, interests, and responsibilities divided by maintaining a separate law practice, can immerse fully in their judicial role. States that continue to allow law practice by judges should amend their respective judicial codes of conduct and, as needed, restructure their judiciary to eliminate any reliance on part-time judges. Such long overdue reforms are essential to protecting our courts, the litigants who appear before them, and the integrity and fairness of our justice system.
Lawyer(s) of the Week
Our lawyer of the week won twenty-six cases before the High Court, the Court of Appeals, and other courts in Kenya…or did he? Reports of Brian Mwenda Ntwiga’s successes have been questioned amidst an even more shocking headline - he’s not actually a lawyer and he’s been arrested for practicing law under a stolen license. (Many U.S. jurisdictions similarly have statutes on the books making the unauthorized practice of law a crime.) According to one source: “Director of Public Prosecutions has directed Inspector General of Police Japhet Koome to expedite investigations against ‘fake lawyer’ Brian Mwenda Ntwiga. … Further, the DPP emphasised that the legal profession must be protected at all costs stating that Kenyans expect nothing less than utmost integrity within legal practice.” At the same time, “a section of distinguished leaders have stood with him for successfully representing clients in legal matters” and apparently he even has one offer to sponsor his law school tuition.
This reminds me of Marcus Arnold, a teenager with no legal training who began giving advice on Ask.com and rose to “the site’s No. 3 rated expert in criminal law.” (Michael Lewis wrote about Arnold in his 2002 book Next – The Future Just Happened.) Both of these examples push back against the presumption that three years of law school is necessary to provide legal advice or advocacy, at least under some circumstances. Nonlawyer practice presents challenges, of course, because no system is in place to protect clients and the public from harm. But, there are also sources of support for nonlawyer practice. One source comes from the culture of the internet where easy access to legal information has led lay people (like Arnold) to believe they can obtain helpful information from each other. Other support for nonlawyer practice comes from advocates, including lawyers, who argue that nonlawyer practice could provide greater access to legal services for low- and middle-income consumers. I don’t know whether Brian Mwenda Ntwiga’s legal work was directed toward the access to justice problem, but his law practice and arrest for it does have me thinking about reforms to unauthorized practice of law rules (more on that below under “Accountability in Our Democracy”). And this makes him our (non)lawyer of the week!
Accountability in Our Democracy
This part of the roundup focuses on the legal profession’s accountability in our democracy. I began by looking at the ways lawyers can be held accountable through the discipline system and malpractice claims, and then examined the First Amendment and lies told by lawyers. Next I focused on non-governmental organizations with a mission to reform lawyer and judicial ethics and then confirmed that yes, Congress does have the authority to hold the Supreme Court accountable for ethics issues. Three weeks ago I took up reforms to the character and fitness process in lawyer licensing. Two weeks ago, I questioned where the line should be drawn when lawyers “manufacture” lawsuits and last week I reflected on whether cameras in the courtroom further accountability in our democracy.
This week’s focus is on unauthorized practice of law rules, which seems timely given our (non)lawyer of the week. An excerpt from an interview with Nora Freeman Engstrom (Stanford Law) captures why these rules cut to the heart of access to legal help and accountability of the legal profession in our democracy. Here’s her take:
The short but dispiriting answer is that the current level of unmet need swamps our attorney supply. Even if [lawyers] all tripled or quadrupled our pro bono commitments or tripled or quadrupled our legal aid funding, that wouldn’t make a dent in the problem.
Once we swallow that bitter pill, we see that unauthorized practice of law rules (UPL rules for short) are implicated because these rules—which, in many states, make it a crime for a non-lawyer to provide legal advice—foreclose the option of licensed lay practitioners. And, with that middle option off the table, UPL restrictions effectively force litigants through one of two doors: hire Cadillac counsel (door number 1), or forego representation (and often, action) altogether (door number 2). Given that most people (including, almost by definition, those facing debt collection actions) simply cannot afford door number 1—they don’t have thousands of dollars to retain a licensed attorney—UPL restrictions, then, effectively consign millions of individuals to go it alone or, more often, do nothing at all and default. UPL restrictions, then, aren’t some esoteric afterthought; they lie at the heart of the current catastrophe.
Read more from her interview here. So what’s the answer if UPL restrictions are the problem? We’ll explore how some states, including Arizona and Utah, are responding through regulatory reform in a future edition of the Legal Ethics Roundup.
Legal Ethics in Pop Culture
A new movie starring Jamie Foxx chronicles the successes of lawyer Willie Gary. The Burial has been called “a lively courtroom drama with wide-ranging pertinence” in a New York Times review. It is based upon a 1999 article written by Jonathan Harr for The New Yorker.
But according to reporting from Jack Newsham (Business Insider) last week, former clients of Gary “say the real lawyer is a creep who screwed them out of millions.” He apparently flouted numerous legal ethics rules along the way, according to experts like Lawrence Fox and my co-author Bruce Green (Fordham Law). Here’s what they told Newsham:
Lawrence Fox, an ethics expert the women [who sued Ford over sexual harassment] hired, said in a report to the court that the Gary firm did essentially no work for $6 million of the $9 million it received. The firm was "literally taking money out of the hands of their clients," he wrote. He called the Gary firm's behavior "unethical, even criminal." What's worse, Fox wrote, is that Gary "applied the very same modus operandi" when it sued other companies, which the report did not name.
According to the New Yorker, Gary also made an agreement with the Loewen Group that one ethics expert questioned. As part of its nine-figure settlement, the company paid Gary a $20,000-a-year retainer for three years upon settling the O'Keefe case so he couldn't sue them again, the New Yorker reported.
Such deals are banned under many states' ethics rules, according to Bruce Green, a law professor at Fordham. If businesses can pay to keep attorneys who win against them out of play, prospective clients can't hire a lawyer who knows the defendant's weak spots. Gary taking on Loewen as a client, Green said in an email, looks like a "pretext" to get around the ban.
Read the full Business Insider article here. The movie released Friday on Prime Video and in select theaters. Here’s the trailer, if you want to check it out.
Get Hired
Did you miss the 40+ job postings from previous weeks? Find them all here.
Conflicts Attorney, Bradley Arant Boult Cummings, LLP — Nashville. Responsible for (1) clearing lateral attorney and new matter conflicts of interest (2) serving as firm subject matter expert on conflicts of interest and the rules of professional conduct; (3) training conflicts and intake staff; (4) and other firm risk management. More details here.
Ethics Counsel, State Bar of Wisconsin — Madison. Provide sound ethical guidance on professional conduct issues to Wisconsin lawyers. Responsibilities include conducting thorough and detailed research on legal issues, making presentations on professional conduct, and staffing the state bar ethics hotline. More details here.
Senior Counsel, Ethics & Legal Compliance, Sony Pictures Entertainment — Culver City, CA. Responsibilities include (1) support and delivery of ethics and legal compliance training; (2) provision of advice on antitrust, competition, anti-bribery, economic sanctions, and third-party engagements; and (3) counsel to global corporate and business teams about the code of conduct, including conflicts of interest. More details here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
October 16 — Rutgers Law School Online Teach-In on Gaza. Start time is 12 eastern - free registration here.
October 17 — John Eastman California State Bar Hearing. Members of the public are permitted to watch the proceedings live, which are set to resume October 17. 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 18 — 27th National College on Judicial Conduct and Ethics, Washington DC. Hosted by the National Center for State Courts. More information here.
October 19 — Book Talk: “Lawyer, Jailer, Ally, Foe: Complicity and Conscience in America's World War II Concentration Camps,” Cardozo Law School. If you’re in NYC this week, stop by this book talk from 6-7PM eastern. You might recall that the book was a recommended read in Roundup No. 10. Register here.
October 25 — World Justice Project Rule of Law Index 2023 Virtual Release. Join live at 10AM eastern for the virtual release of the latest Rule of Law Index. More information and free registration here.
February 7 — International Legal Ethics Conference Call for Papers Deadline. Submissions opened last week for the 10th biennial meeting of the International Legal Ethics Association, which will be held July 17-19, 2024, in Amsterdam. (I love this conference. It’s where I got my start as a legal ethics scholar, a wonderful community of academics and experts who care deeply about lawyer and judicial ethics.) More information here.
Wisdom for the Week
“At law school, I was told women could not be litigators; a Mexican-American woman should not be head of a Mexican-American organization. I mean all of these times when you’re told, ‘You can’t do this’ and my response is, ‘We’ll see.’” Vilma Socorro Martinez, in a 2016 interview with Maggie Rivas-Rodriguez
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I wish you a wonderful week! See you next Monday.