Legal Ethics Roundup No. 8 - Paxton Acquitted, Overworked Defenders, Lit Finance in Congress, 1st Amendment & Indicted Lawyers, Yoo Testifies, Ethics in Israel, Will Chutkan Recuse? (09.18.23)
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Legal Ethics Roundup No. 8 - Paxton Acquitted, Overworked Defenders, Lit Finance in Congress, 1st Amendment & Indicted Lawyers, Yoo Testifies, Ethics in Israel, Will Chutkan Recuse? (09.18.23)
Paxton Acquitted, Overworked Defenders, Lit Finance in Congress, 1st Amendment & Indicted Lawyers, Yoo Testifies, Ethics in Israel, Will Chutkan Recuse? & More
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A month and a half ago, I took a risk and started writing down the thoughts in my mind each week about all things related to lawyer and judicial ethics. I hoped maybe a few dozen might read it. But, you showed up. More than 400 of you subscribed and 8,000 visited from 36 states and 16 countries in the first six weeks. AMAZING!
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So, thank you for being here. Welcome to what captivates, haunts, inspires, and surprises me every week in the world of legal ethics.
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Highlights from Last Week - Top Ten Headlines
It’s official — last week 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 Texas AG Ken Paxton Acquitted. Whatever your politics, this outcome makes it challenging to teach legal ethics in Texas. An overwhelming vote from the Texas House (including A LOT of conservatives) brought forward the impeachment. This outcome will inevitably deter whistleblowing attorneys, like those who raised concerns about Paxton. Here’s a snapshot of what others had to say:
And if somehow you’ve missed it all…here’s a recap from the Wall Street Journal.
#2 The First Amendment & the Indicted Lawyers. ABA Journal legal affairs reporter Matt Reynolds published a thoughtful piece this past week distinguishing between the discipline process and the criminal cases for the lawyers indicted with the former president. He’s been working on this article for a while, which I appreciate. We had two lengthy conversations, and I imagine he spent a similar amount diligence and time interviewing his other sources. He focused on the viability of a First Amendment defense, with Rebecca Roiphe (New York Law School) arguing for it in the discipline context and Eli Wald (University of Denver Law) and I arguing a more nuanced position when it comes to fundamental elements of preserving our democracy. Read the full ABA Journal article here. (And return to this prior edition of the roundup for more on lawyer lies and the First Amendment under the Accountability in Our Democracy section.)
#3 Limits on Judicial Power in Israel. As reported in The Economist, the president of Israel’s Supreme Court, Esther Hayut, presided over a “marathon hearing” last week with “all 15 justices, sitting together on one case for the first time in the court’s history.” They “heard petitions demanding that they disqualify an amendment passed by the government seven weeks ago, limiting the judges’ powers. The main broadcasters suspended their programming to show the session. Spellbound, Israelis watched the arguments over the future of their democracy.” Read the full article here.
#4 Public Defenders “Dangerously Overworked.” From Arnold Ventures: “A comprehensive new report by a team of attorneys and researchers from nationally-known organizations like the RAND Corporation, the National Center for State Courts, the American Bar Association and the Law Office of Lawyer Hanlon has found that public defense attorneys are being forced to handle far too many cases each year, making it extremely difficult for them to provide adequate and constitutionally-guaranteed legal representation to people accused of crimes. Ethics rules require lawyers to limit their workloads to a level that ensures they are capable of giving clients adequate representation, but the report found that many public defense attorneys across the country are taking on too many cases to actually do so.” Read the full report here.
#5 Past-ABA Executive Director Will Lead Rocker Lawyer Effort on to Expand Affordable Legal Services. From Reuters: “Online legal services company Rocket Lawyer has hired former American Bar Association executive director Jack Rives, it said on Thursday, as the company seeks a license to join Arizona's alternative legal business program. Rives led the ABA, the nation's largest voluntary bar association, for more than 12 years before stepping down in February.” Read the full article here.
#6 Yoo Testifies and Bannon Gets Reprimanded. John Yoo took the stand in John Eastman’s California Bar trial last week. Last week’s bonus content post offers extensive coverage. Also notable from the proceedings, on Thursday afternoon Judge Yvette Roland stopped everything when she learned that the Bannon War Room was live-streaming the trial. She’s made it clear from the outset that no screenshots or live-streaming should occur, though the trial can be viewed by the public live via Zoom. The trial resumes on September 26.
#7 Religion as Sanction. Remember the Southwest Airlines lawyers who were sanctioned with mandatory “religious-liberty training” to be delivered by the Alliance Defending Freedom? Chris Geidner at Law Dork reports that as things look now, their training will take place next week on September 26. There was a 30-day hold on Judge Brantley Starr’s order, but it expired yesterday. Maybe there will be some intervening relief over the coming week, but according to Geidner’s coverage this doesn’t seem likely.
#8 Junk Mail not Legal Ethics Violation. Fulton County Superior Court Judge Scott McAfee, who is presiding over the racketeering case against the former president and 18 others, “declined on Thursday to hold a hearing to sanction a special prosecutor whose private law firm sent a solicitation to four of the defendants offering legal services.” According to Judge McAfee’s order denying sanctions, the “mailer appears to be the type of mass-generated material to which all citizens with a mailbox are regularly subjected.” (You can judge the mailer yourself - take a look here.)
#9 Congressional Hearings on Litigation Finance. The U.S. House Oversight and Accountability Committee held hearings on Wednesday about third-party litigation financing in mass torts. Maya Steinitz (Boston University School of Law) offered extensive testimony about the ethical pros and cons of third-party funding which can, when properly deployed, “benefit individuals, small businesses, large businesses, nonprofits and for-profit entities. It can be used to advance, or challenge, both liberal and conservative goals.” Read her full testimony here. Kathleen Clark (Washington University School of Law) also testified and took the opportunity to raise larger concerns with the Committee: “This hearing is about third party litigation funding, a practice that currently affects a small (but growing) portion of court cases. As a matter of legal ethics, third party litigation funding does pose ethical risk, such as conflicts of interest. At the same time, this funding mechanism can benefit clients, particularly those who would not otherwise be able to access our courts. While ethics issues do arise in this context, in my professional opinion, they are nowhere near the top of the list of significant ethics concerns facing our courts. Instead, I would place at the top of that list the ethics crisis currently facing the U.S. Supreme Court.” Read her full testimony here.
#10 Will U.S. District Judge Tanya Chutkan Recuse? I doubt it. But the former president’s attorneys asked her to do so based on comments she made while sentencing other defendants in January 6 cases. Learn more here.
Recommended Reading — Recent Scholarship & Op-Eds
I offer two pieces for this week’s recommended reading. First, Aliza Shatzman of the Legal Accountability Project reminds us about the bleak headlines from last week exposing the lack of diversity on federal and state courts. As she notes in her op-ed: “Twenty-five of the 94 federal district courts have never had a non-White judge. This includes many districts with substantial non-White populations. The state courts aren’t much more diverse.” She offers an important solution—diversifying law clerkships. Second, Marsha Griggs (St. Louis University School of Law) questions the outsourcing of the bar exam and offers recommendations for attorney licensure.
“Clerkships Are a Pipeline to the Bench. We Need to Diversify Them,” Bloomberg Law by Aliza Shatzman. From the op-ed:
Ideally, judges’ lived experiences would match those they serve. Yet there’s a significant pipeline problem for creating a judiciary that reflects the public. It takes decades to chart a career from law student to judge, and that path often starts with being a judicial law clerk. But clerks are notoriously homogenous, creating a persistent lack of diversity among judicial nominees. …
The lack of diversity in judicial clerkships and the judiciary has larger implications for fairness in judicial decision-making and the future face of the legal profession. As we consider who rises through the legal profession—including to the judiciary—diversifying the profession starts with diversifying clerks. The pathway to the bench starts with clerkships. Today’s law clerks are tomorrow’s prosecutors, public defenders, professors, law firm partners—and judges. Diversifying pathways to the bench necessitates providing more expansive and more candid information to applicants.
“Outsourcing Self-Regulation,” by Marsha Griggs, forthcoming in the Washington & Lee Law Review. From the abstract:
Answerable only to the courts that have the sole authority to grant or withhold the right to practice law, lawyers operate under a system of self-regulation. The self-regulated legal profession staunchly resists external interference from the legislative and administrative branches of government. Yet, with the same fervor that the legal profession defies non-judicial oversight, it has subordinated itself to the controlling influence of a private corporate interest. By outsourcing the mechanisms that control admission to the bar, the legal profession has all but surrendered the most crucial component of its gatekeeping function to an industry that profits at the expense of those seeking entry.
The judicial outsourcing of the bar exam has privatized bar admission in ways that can be detrimental to the goal of public protection and damaging to those seeking licensure. The manner in which state courts have fostered privatized bar admission brings into question whether the delegation of judicial power is consistent with Constitutional prerogatives. This article applies the lenses of multiple political-economic theories to the normative framework of attorney self-regulation and bar admission. In so doing, it seeks to identify justifications for outsourcing an exclusive judicial power that is essential to the goals of self-regulation. This article ultimately questions whether the legal profession has surrendered, or will soon lose, the ability to regulate itself. The article concludes with multiple recommendations to reverse the directional flow of power in attorney licensure in a manner that will yield more transparency and public accountability.
Lawyer(s) of the Week
This week the award goes to Claire Parsons for her brave, honest essay in Above the Law, “The Ugly Beautiful Gift: How A Lawyer Mom Faced Loneliness And Found Belonging.” Claire is an attorney who specializes in employment, school law, special education, and municipal law at Wood + Lamping LLP. She also is the founder of BrilliantLegalMind.com, where she offers “practical mindfulness instruction, tips, and resources to help take your legal mind from burdened to brilliant.” Here’s a short excerpt from her essay:
There’s this great quote from Maya Angelou — a working mom who went looking for love and connection all over the world. It goes, “You only are free when you realize you belong no place — you belong every place — no place at all. The price is high. The reward is great.” I paid a high price in facing my own loneliness and accepting that I belonged no place.
Read the full piece here. (And read more about lawyer mental health and well-being below under Accountability in our Democracy.)
Judge(s) of the Week — Justice Ketanji Brown Jackson
Recall from last week’s roundup that the 60th anniversary of the 16th Baptist Street church bombing was on September 15. Justice Ketanji Brown Jackson traveled to Birmingham and delivered a stunning, deeply-moving speech in that church: “I’ve come to Alabama to commemorate and mourn, celebrate and warn.”
She shared her own memories of the tragedy: “I knew that four little girls, not much older than myself, had been murdered at 16th Street Baptist Church when a bomb ripped through the basement, awakening the nation and the world to the horrors of race-based violence and oppression. I knew those girls were killed simply because they were Black, and because at that time, people were rising up to demand equal rights.” She went on to observe: “If we are going to continue to move forward as a nation, we cannot allow concerns about discomfort to displace knowledge, truth or history. It is certainly the case that parts of this country’s story can be hard to think about. … Yes, our past is filled with too much violence, too much hatred, too much prejudice, but can we really say that we are not confronting those same evils now? We have to own even the darkest parts of our past, understand them and vow never to repeat them.”
She also asked a question that I have thought deeply about in my own work on women shortlisted for the Supreme Court: “Why has it taken 232 years and 115 prior appointments for a Black woman to serve on the Supreme Court?” You can watch the full speech here. When you do, you’ll see why Justice Jackson is our judge of the week.
This Week in Ethics History
September 24, 1789. The Judiciary Act of 1789 was signed into law by President George Washington, establishing parameters for the federal judiciary including a Supreme Court with one chief justice and five associate justices. (You may be surprised—it hasn’t always been a court of nine. And yes, despite Justice Alito’s protests to the contrary, Congress has the constitutional authority to pass laws like this.)
Accountability in Our Democracy
This part of the roundup focuses on the legal profession’s accountability in our democracy. A month ago we explored ways lawyers can be held accountable through the discipline system and malpractice claims. Three weeks ago we examined an issue that will undoubtedly surface repeatedly as we follow the criminal trials and discipline hearings for the indicted lawyers and others involved in the 2020 election fraud cases—the First Amendment and lies told by lawyers. Two weeks ago we focused on non-governmental organizations with a mission to reform lawyer and judicial ethics. Last week’s installment confirmed that yes, Congress does have the authority to hold the Supreme Court accountable for ethics issues.
This week, we take up a requirement lawyers must satisfy before receiving a license to practice law — the character and fitness application. Why does this matter to accountability? Lawyers go through extensive education and scrutiny into their background before obtaining a their license. It is a privilege. This process is meant to protect clients and the public. But, some aspects of the licensing process may not function as intended, and the mental health questions on many state bar applications are one area in need of reform.
David Jaffe (American University Washington College of Law) and Janet E. Stearns (University of Miami School of Law) argue that “too many state bar licensure systems perpetuate the stigma against seeking help for mental health challenges.” In their article “Fixing a Broken Character Evaluation Process,” they grade each state:
In considering a review of their approach to character and fitness questions as related to mental health, we encourage state officials to consider the following, proposed in the ideal order of implementation. In doing so, we recognize that different views and perspectives are raised and considered in each state. It is our fervent belief, however, that the less a state highlights mental health as a lightning rod for their questions, the more likely a law student is to seek help when they need it, and subsequently not have a matter remain unaddressed upon application or after they enter the profession:
Best (GRADE: A)
All questions related to mental health are removed. Questions on the application focus only on specific conduct issues (arrest, financial management, etc.) without any reference to mental health or substance use.
States in this category: Arizona, California, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Mississippi, Tennessee, and Washington
Three states received the grade of “F” — Florida, Georgia, and Nevada. The rest fall somewhere in between, clearly with room for improvement. Want to see where your state landed? Read the full article by Jaffe and Stearns here.
Think back to previous editions of the roundup, where Jon Lee made the case for more carrots than sticks in areas of lawyer regulation and where a State Bar of Michigan task force recently recommended making well-being part of the lawyer’s duty of competence. Rather being a barrier to law practice, mental health and well-being should be part of the lawyer’s competence and daily practice. For more resources on this, check out the work of our Lawyer of the Week Claire Parsons (see above), Jeena Cho (co-author of the book The Anxious Lawyer) and Scott Rogers (founder and director of the Institute for Mindfulness Studies and of the University of Miami School of Law's Mindfulness in Law Program).
Legal Ethics in Pop Culture
Have you watched Painkiller yet? It’s a disturbing juxtaposition of reality and fiction-based-recreation-of-reality. Each episode opens with a very brief, true story about the devastation of OxyContin. (I’m on episode four. So far, every opening is a mother describing how her young, vibrant child died after taking OxyContin under a doctor’s care. You will need tissues; at least I do.) And then the show moves into a fictionalized depiction of the events that led to the rise and fall of the drug. For those who don’t know the series, you’ll find a brief synopsis from Time Magazine below (full article here):
Painkiller, a Netflix drama out Aug. 10, follows the mint green OxyContin pill’s trail of destruction from the very top—Richard Sackler (Matthew Broderick), the former chairman and president of Purdue Pharma—to the middlemen—the sales reps deployed to blanket the country (Dina Shihabi and West Duchovny)—to the everyday Americans whose lives were irrevocably changed (Taylor Kitsch) by the drug. At the bottom, Edie Flowers, a tenacious investigator for the U.S. Attorneys’ Office (Uzo Aduba) tries to trace the subsequent addiction crisis back to its rotten core. At its center, Painkiller is about the key moments that led to the opioid epidemic—and how they could have been stopped, but weren’t.
By late 2021, the opioid crisis had taken the lives of more than one million Americans and the count continues.
What does this have to do with legal ethics? Everything, as it turns out. At the heart of it all is Purdue Pharma’s general counsel, Howard Udell, played by Brian Markinson in the show. The real Udell eventually pled guilty to minor misbranding of OxyContin, and the company along with executives paid $634.5 million in fines. Udell was sanctioned with community service. That service led him to “co-found the Connecticut Veterans Legal Center in 2009 — and the organization helps veterans with a variety of health, housing, and legal needs.” It was a redemption of sorts, I guess. He died in 2013. It is also notable that lawyer Rudy Giuliani helped “broker a deal between the U.S. government and Purdue Pharma” allowing the continued sales of OxyContin and keeping executives from jail time. (For the latest on Giuliani, see the roundup’s coverage of lawyers indicted with the former president.)
Get Hired
Did you miss the 20+ job postings from previous weeks? Find them all here.
Conflicts Attorney, Stoel Rives LLP — Anchorage, Boise, Minneapolis, Portland, Sacramento, or Salt Lake City. Responsible for handling potential conflicts in all new business and new talent situations, communicating difficult decisions, handling multiple complex situations, and producing high quality work while under pressure. More details here.
Conflicts Attorney, Winston and Strawn — Chicago, Charlotte, Dallas, Houston, Los Angeles, Miami, or New York. Responsible for all facets of the conflicts search process including the resolution of conflicts and drafting supporting documentation such as standard or bespoke engagement letters and waivers/consents. Support the firm’s programs including new business and conflicts intake, lateral hiring and general regulatory risk management. More details here.
Ethics and Risk Management Attorney, Klinedinst PC, anywhere (though the ethics team is headquartered in Southern California). This position is described as “an amazing opportunity for an attorney with a background in legal ethics who desires to practice full-time in this burgeoning area of the law. The position also involves State Bar discipline defense work.” More details here.
Program Officer for Technology, Legal Services Corporation — Washington, DC. This is a rather unique position that isn’t 100% focused on ethics, but responsibilities encompass the duty of competence and especially tech competence. Among a wide range of roles, this position develops and maintains a breadth of knowledge about existing research, current trends, and emerging issues related to the intersection of technology and the delivery of legal services; helps develop policy relating to the use of technology in delivering legal services to the client community; and stays informed about the latest technological advancements, including but not limited to artificial intelligence and machine learning, to help the legal aid community explore how these technologies can enhance service delivery. More details here.
Senior Intake Attorney, Mintz Levin — Boston, Los Angeles, New York, and other offices. Responsible for supporting various firm initiatives related to new business intake and conflicts of interest. Focus primarily on executing processes related to new client review, identification and resolution of conflicts, and outside counsel guideline review. More details here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
September 21 — Accountability and the Future of the Supreme Court sponsored by The Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra University. Leading experts, judges, ethicists, and journalists will convene to examine Supreme Court ethics and accountability. Senator Sheldon Whitehouse will deliver a keynote, followed by three panels including one featuring me(!) alongside New York Times columnist Jamelle Bouie and Gibson Dunn partner Thomas Dupree. Registration and the full schedule here.
September 26-29 — John Eastman California State Bar Hearing. Members of the public are permitted to watch the proceedings live, which are set to resume on September 26. The link to watch is here.
October 24-25 — Generative AI in Legal Practice Summit, Centre for Legal Innovation at the College of Law, Australia. This free, virtual two-day event will feature presenters and panelists worldwide covering a range of topics, including ethical obligations surrounding generative AI. The session “Legal Professional Responsibility in the Digital Age - Critical, Outdated, or Redundant?” looks especially provocative. Participants can register here. You can attend as many sessions as you wish, and if you can’t make it in real time the session recordings will be sent to you. I had the opportunity to work with Terri Mottershead, executive director of the Centre, while a Fulbright in Melbourne during 2019. This promises to be another of her excellent and informative events.
Wisdom for the Week
This week’s quotes come from closing arguments in the Paxton impeachment trial, so you get two, one from each side.
“Justice limps along, but gets there all the same.” — Gabriel García Márquez, as quoted by Tony Buzbee in his closing argument on behalf of Ken Paxton
“Do right and risk the consequences.” — Sam Houston, as quoted by Andrew Murr in his closing argument on behalf of the House impeachment managers
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Have a magnificent Monday!