Legal Ethics Roundup No. 11 - Do Check the Box, Don't Cut-and-Paste, SCOTUS Ethics Optimism, Thomas Recuses, 3rd Circuit Keeps 8.4(g), Gag Orders & More (10.09.23)
Do Check the Box, Don't Cut-and-Paste, SCOTUS Ethics Optimism, Thomas Recuses, 3rd Circuit Keeps 8.4(g), Gag Orders & More
Welcome
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Happy Sunday! The roundup is a day early this week because of my work schedule. Hope you’re having a wonderful weekend.
A year ago I randomly stacked these books in my new office because there was not any more room on my bookshelves. (The University of Houston Law Center moved into a beautiful building designed by the woman-owned firm Shepley Bulfinch.) I know they say not to judge a book by its cover, but can you judge a person by her stack of book covers? Maybe. That Anita Hill’s Speaking Truth to Power forms the foundation of this stack is quite relevant to the roundup this week. Read on…
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 SCOTUS 2023 Term Opens With First of Five (So Far) Cases Involving Legal Ethics. The Supreme Court opened the 2023 Term last week and heard its first case involving legal ethics issues. 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! You can read all about them in Bonus Content No. 3. The Court heard arguments in Acheson Hotels v. Laufer, which involves lawyer ethics, sort of. The plaintiff Laufer asked that this civil rights tester case be dismissed as moot, in part because her lawyer was disciplined for ethics violations. Read more at Vox about the argument and Laufer’s lawyers.
#2 A Decade for Supreme Court of Texas With No Black Justice. Last week marked the 10-year anniversary of Chief Justice Wallace B. Jefferson’s retirement from the Supreme Court of Texas. He was the first African American justice appointed by Governor Rick Perry in 2001 and he is the last to serve, stepping down from the bench in 2013. (Justice Dale Wainright is the only other African American to sit on the Court. He served from 2003-2012.). It feels a bit strange to include my husband among these headlines, but it’s important to note this lack of diversity, especially after recent headlines documenting this occurring in courts across the country. (See Roundup No. 7, Headline #7 for more on that data.) To mark the anniversary, friends and family gathered for the unveiling of Wallace’s portrait. Read his son Sam Jefferon’s moving speech and check out the portrait in Medium.
#3 WI Justice Refuses to Recuse; Impeachment Threat Increases. From the Associated Press: “The Wisconsin Supreme Court, in a 4-3 vote along partisan lines Friday, agreed to hear a challenge to Republican-drawn legislative maps after a newly elected liberal justice declined to recuse herself. Justice Janet Protasiewicz’s decision to remain on the case increases the chance that Republicans, who control the Legislature and drew the maps, may proceed with the unprecedented step of impeaching her.”
#4 Judicial Bullying Abroad. From Joshua Rosenberg (A Lawyer Writes): “A member of the Court of Appeal has received a formal warning for misconduct after an inquiry concluded that his behaviour amounted to judicial bullying. Sir Clive Lewis was appointed a lord justice of appeal exactly three years ago. He is thought to be the most senior member of the judiciary to be disciplined since the current arrangements for investigating judicial misconduct in England and Wales were introduced a decade ago.” Read more here. (H/T How Appealing)
#5 Thomas Recuses! From NBC News: “Conservative Justice Clarence Thomas for the first time recused himself from a case involving the Jan. 6, 2021, attack on the U.S. Capitol by then-President Donald Trump's supporters as the Supreme Court on Monday rejected an appeal brought by former Trump legal adviser John Eastman.”
#6 Caution with Cut-and-Paste. From Richard Leisner (Trenam Law) is this analysis in Law360: “Robert Adelman v. Proskauer Rose LLP presents an intriguing juxtaposition of facts and legal issues: A nationally prominent law firm accused of malpractice, allegedly arising from a cut-and-paste error resulting in potential damages of $636 million.” Read the full piece here.
#7 No Box Checked, No Jury Trial? From Newsweek: “Trump's lawyer, Alina Habba, has denied suggestions that the former president is not getting a jury trial in his New York $250 million fraud civil case because his legal team did not request one in legal filings.”
#8 Third Circuit Won’t Revisit Decision Upholding Pennsylvania Rule 8.4(g). From Law360: “The Third Circuit declined to rethink a panel's decision to revive a new anti-bias and harassment rule in Pennsylvania that imposes ethics penalties on attorneys who intentionally discriminate based on sex or race after ‘a majority’ of the appellate court's judges declined to vote for a rehearing.” (For more on the original Third Circuit decision, see Roundup No. 6, Headline #3.)
#9 Gag Order Imposed After Post About Law Clerk. From Politico: “The judge overseeing Donald Trump’s civil fraud trial issued a gag order Tuesday barring Trump from making comments about court staff after the former president posted a social media attack on the judge’s principal law clerk that included her photo.”
#10 Cautious Optimism on SCOTUS Ethics Code. I spoke with Ed Pilkington at The Guardian about the opening of the Supreme Court’s 2023 Term, and was quoted for my optimism.
So far, the justices have proved to be resistant to mounting demands for them to adopt a code of ethics – a form of accountability required for all other judges. But Renee Knake Jefferson, a law professor specializing in ethics at the University of Houston, said she was “cautiously optimistic” that a resolution was getting closer. “Several justices have said that they have been talking about the ethics code they might adopt, and that they are trying to come to consensus,” she said.
Regulatory Reform Watch
Should legal technology be regulated? Drew Simshaw (Gonzaga University School of Law) argues yes in his recent article, “Toward National Regulation of Legal Technology: A Path Forward for Access to Justice.” From the abstract:
Legal technology can help close the access-to-justice gap by increasing efficiency, democratizing access to information, and helping consumers solve their own legal problems or connecting them with lawyers who can. But, without proper design, technology can also consolidate power, automate bias, and magnify inequality. The state-by-state regulation of legal services has not adapted to this emerging technology-driven landscape that is continually being reshaped by artificial intelligence–driven tools like ChatGPT. Confusion abounds concerning whether use of these technologies amounts to unauthorized practice of law, leads to discrimination, adequately protects client data, violates the duty of technological competence, or requires prohibited cross-industry business structures. Despite widespread calls for regulatory reforms that respond to these uncertainties, few jurisdictions have acted, as little data exists about the use, benefits, and harms of rapidly emerging legal technologies.
This Article argues that, in light of these problems, regulatory reform processes should be explored at the national level, where expertise, as well as empirical benefits and economic advantages, would yield more informed and impactful reforms aimed at balancing consumer protection and access to justice. The Article provides a comprehensive proposal for an opt-in national legal services “sandbox”—a regulatory reform mechanism that carefully tests innovative services through temporary safe harbors and data generation that leads to more informed regulatory decision-making. Although legal services are traditionally regulated at the state level, other industries have benefited from licensing individuals locally while regulating the technologies they use nationally, and state bars already rely on national entities to help with other regulatory functions, like drafting rules of professional conduct. Legal technology’s potential to help close the justice gap—a national crisis—warrants a similar national response.
This Week in Ethics History
October 10, 1973. Vice President (and lawyer) Spiro T. Agnew resigned from office and pleaded no contest to the charge of failing to report $29,500 in income while governor of Maryland.
October 11, 1991. Anita Hill testified during the confirmation hearings for Clarence Thomas. More on that below under “Lawyer(s) of the Week.”
October 15, 2017. The #MeToo movement went viral, with more than 200,000 tweeting it after Alyssa Milano posted the term, which was originally coined by activist Tarana Burke. What does this have to do with legal ethics? Take a look at my Fordham Law Review article “Judicial Ethics in the #Me-Too World.”
Recommended Reading — Scholarship
This week’s recommended reading brings insights from Canada about judicial analytics and from the “(r)evolution” in lawyer ethics in the U.S. spurred by the economics of law practice and regulatory reforms.
The Supreme Court of Canada and Mainstreamed Judicial Analytics by Jena McGill and Amy Salyzyn (both of the University of Ottawa). From the abstract:
The Canadian legal community faces important questions about how to respond to the fast-growing field of judicial analytics. Although analyzing judicial decision-making is not new, judicial analytics tools allow for faster and more powerful analyses of large amounts of information. In the near-to-medium future, these tools will likely improve in terms of technological capacity, quality of outputs, and accessibility.
In this Chapter, we explore how mainstreamed judicial analytics might impact the Supreme Court of Canada. Specifically, we consider how analytics could influence: (1) the appointment process for Supreme Court judges; (2) the adjudication of cases at the Supreme Court; and (3) the ability of the public - and the Court itself - to appraise trends and tendencies in judicial decision-making at the Supreme Court. …
Finally, while analytics tools are relatively new, envisioning their potential uses at the Supreme Court reinscribes decidedly old questions about the work of judging. What makes a “good” Supreme Court judge? What kinds of observed patterns in Court practices should lead to reforms and why? What are the limits of the empirical study of patterns in the Court’s work? These questions underscore the importance of conducting analytics with a clear-eyed purpose and careful attention to the relevant normative questions. …
Ethics, Lawyering, and Regulation in a Time of Great Change: Field Notes from the (R)evolution, South Carolina Law Review, by Lucian Pera (Adams and Reese LLP). Here’s a preview:
From all directions, unmistakable signals show that the American legal profession and the business of law is currently in the midst of great change. A tour d’horizon reveals two broad categories of change—those driven by economics and those driven by regulatory reforms.
Read the full article here.
Lawyer(s) of the Week
Professor, legal scholar, and author Anita Hill delivered the 2023 Elizabeth D. Rockwell Distinguished Lecture on Ethics and Leadership for the University of Houston Hobby School of Public Affairs last week, and I got to meet her! Hill is now the University Professor of Social Policy, Law, and Women's, Gender and Sexuality Studies at Brandeis University, but she is best known for her testimony against then-U.S. Supreme Court nominee Clarence Thomas in 1991 with allegations of workplace sexual harassment. As noted in the Rockwell Lecture announcement: “She made history by bringing a conversation usually handled behind closed doors into the public consciousness, and she has been a champion for reforms to address gender-based violence.” I watched her testimony in high school and read her book Speaking Truth to Power in law school. You can watch the lecture here and you’ll find a memorable line from her remarks in a small group Q&A with students that I got to sit in on below in this week’s “Wisdom for the Week.” Getting to meet and hear from one of my personal sheros makes Hill our lawyer of the week!
Judge(s) of the Week
I’m sure most of us would probably not want poetry we wrote 30 years ago read aloud anywhere, let alone during a senate confirmation hearing. Judge Mustafa Kasubhai endured that last week, where he conceded: “The poetry was definitely not good.” As Huffington Post reported: “straight out of an English lit major’s nightmare, [Senator Cruz] began reading aloud a poem that Kasubhai wrote decades ago, when he was a student in law school, called ‘Sensualized Property Theory.’” Kasubhai is currently a magistrate judge for the U.S. District Court for the District of Oregon, appointed in 2018. If confirmed, he would be the first Muslim to serve on Oregon’s federal district court and the third Muslim to serve as a federal district court judge in the U.S. For his current judicial service and for enduring that confirmation hearing, he’s our judge of the week. The Huffington Post piece concluded with a quote from Senator Durbin: “‘Your poetry has been fed back to you today,’ Durbin told Kasubhai. ‘Don’t be discouraged. Poetry is still very important.’”
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 accountablethrough the discipline system and malpractice claims, and then examined the First Amendment and lies told by lawyers. A month ago I focused on non-governmental organizations with a mission to reform lawyer and judicial ethics and three weeks ago we confirmed that yes, Congress does have the authority to hold the Supreme Court accountable for ethics issues. Two weeks ago I took up reforms to the character and fitness process in lawyer licensing. Last week, I questioned where the line should be drawn when lawyers “manufacture” lawsuits.
This week I’m wondering whether cameras in the courtroom further accountability in our democracy. As CNN reported last week:
A group of major media organizations on Thursday asked the judge overseeing Donald Trump’s federal election subversion case for permission to broadcast his trial, arguing the historic nature of the case warrants an exception to a strict rule prohibiting cameras in courtrooms.
CNN and more than a dozen media outlets and groups asked US District Judge Tanya Chutkan for permission to “record and telecast” the March 2024 trial or for the court to “contemporaneously publish on YouTube its internally administered audiovisual livestreams and recordings of the proceedings.”
A YouTube channel for court proceedings is not unprecedented. As I noted in my Bonus Content No. 3 post here at the roundup, the Supreme Court of Texas has live-streamed video of oral arguments for many years and even has its own YouTube channel. The website for the federal courts maintains a lengthy history on the topic of cameras, broadcasting, and remote public access in the courts. (It’s filled with all sorts of interesting facts - for example, did you know that in October 1988 Chief Justice William Rehnquist appointed an Ad Hoc Committee on Cameras in the Courtroom?) The Judicial Conference policy allows cameras in these circumstances:
A judge may authorize broadcasting, televising, recording, or taking photographs in the courtroom and in adjacent areas during investitive, naturalization, or other ceremonial proceedings. A judge may authorize such activities in the courtroom or adjacent areas during other proceedings, or recesses between such other proceedings, only:
1) for the presentation of evidence;
2) for the perpetuation of the record of the proceedings;
3) for security purposes;
4) for other purposes of judicial administration;
5) for the photographing, recording, or broadcasting of appellate arguments; or
6) in accordance with pilot programs approved by the Judicial Conference.
Stay tuned for whether the former president will have a new reality show broadcast live early next year.
Legal Ethics in Pop Culture
Looking for a new Netflix series to binge-watch? You’ll spot lots of legal ethics issues in The Lincoln Lawyer. Indeed, many episode titles are ripped right from the rules themselves including Season 2, Episode 1 “The Rules of Professional Conduct” and Season 2, Episode 3, “Conflicts.” The show is the latest creation from lawyer David E. Kelley, who gave us Ally McBeal and The Practice, among other legal television series.
Get Hired
Did you miss the 40+ job postings from previous weeks? Find them all here. This week I’m switching it up and posting two terrific opportunities for graduate or law student interns. Next week we will return to job opportunities for those with a J.D.
Spring 2024 Policy Intern – Graduate / Law Student, CREW — DC (hybrid remote). Citizens for Responsibility and Ethics in Washington (CREW) is seeking a policy intern to join the Policy Team for spring 2024 to support CREW’s democracy and rule of law work. The intern will conduct federal and state policy and related research, assist in the writing of CREW reports, and develop policy reform projects to achieve an inclusive, ethical, and accountable government. The ideal candidate will show interest or experience in democracy and rule of law issues, including those related to the January 6th attack on the U.S. Capitol. This position is designed for a law student or MPP candidate. Interns will receive a stipend of $1000 a month. Email a resume and a cover letter that includes availability to crewinterns@citizensforethics.org. Please place your last name and “Graduate Policy Intern” in the subject line.
Spring 2024 Legal Intern – Law Student, CREW — DC (hybrid remote). Citizens for Responsibility and Ethics in Washington (CREW) is seeking full- or part-time legal interns for spring and summer semesters 2024. Responsibilities include legal and related research, analyzing emerging issues within the government ethics space, and assisting in the preparation of complaints, reports, and other written products. Interested applicants must have completed at least one year of law school and must possess strong writing and analytical skills. Interns will receive a stipend of $1000 a month. Please email a resume, cover letter, and writing sample to crewinterns@citizensforethics.org. Include the semester for which you are applying, “Legal Intern,” and your last name in the subject line (e.g. Summer Legal Intern Smith).
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all 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 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
“Unless you understand the context, you will not understand the power dynamics. … Taking context away is a way to avoid hard truths.” — Anita Hill, remarks at the University of Houston, October 5, 2023
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Have a super Sunday (and a magnificent Monday)!