Legal Ethics Roundup No. 2 - Lawyer Co-Conspirators in a Presidential Indictment, SCOTUS v. Congress on Ethics, ABA Stifles Ethics Innovation Op-Ed & More (08.07.23)
A Monday morning review of all things related to legal and judicial ethics.
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Highlights from Last Week - Top Five Headlines
#1 Five (Six?) Lawyers Named as Co-Conspirators in Trump Indictment. The much-anticipated criminal indictment from the United States Department of Justice against the former president named six co-conspirators, at least five of whom are lawyers. (For more on that, see Lawyer(s)of the Week, below.) This case is historic, a first for our nation. Richard Hasen called it “perhaps the most important indictment ever handed down to safeguard American democracy and the rule of law in any U.S. court against anyone.” As for the involvement of lawyers, it is Watergate on steroids. According to Dahlia Lithwick and Mark Joseph Stern, it as an “indictment of the entire legal profession.” They wrote:
In a few weeks, a new class of students will begin law school. These 1Ls will be taught, at orientation, to conduct themselves honorably in the legal profession—then taught how to manipulate the legal system to enrich and empower their clients. These 1Ls need only glance at the news to see that there is a deep sickness in their profession, an obsession with pretending that evil deeds are not evil when done in the service of a paying customer. They will see that they are learning many of the same skills that Trump’s lawyers repurposed to sabotage an election and subvert the law. They will see that, even now, only a tiny fraction of the lawyers involved in the insurrection have faced meaningful consequences. And they will have to choose which path aligns best with their ambitions. Smith’s indictment serves as the rare reminder that one of those paths leads to criminal corruption.
As a law professor, I’m especially mindful of their warning. I’ll be teaching this case in my Professional Responsibility classes. I’ve called for consequences for lawyers involved in the insurrection, and I serve on the board of The 65 Project, a nonprofit that aims to “deter future abuse of the legal system by lawyers seeking to overturn legitimate elections.”
#2 SCOTUS v. Congress: Who wins on ethics? The debate over whether or not Congress has the authority to require the United States Supreme Court to adopt an ethics code for itself,or even impose one upon the Court directly, became decidedly heated last week when two justices went public with their opposing views. The idea that Congress has no authority is absurd; at a minimum Congress controls the budget and also can legislate the number of justices, the location of the court, and the Court’s jurisdiction over cases. Nonetheless, the Wall Street Journal quoted Justice Samuel Alito saying: “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court – period.” Setting aside the ethical prohibition against judges discussing the merits of a matter likely to come before them, which most judges adhere to, Alito’s statement is wrong as a matter of law. Commentators and scholars quickly pointed this out. Stephen Vladeck tweeted (or whatever the new verb is for posting on ‘X’):
“It’s not just a ‘controversial’ position; it’s belied by 234 years of practice, and would turn the separation of powers totally on its head. It’s rather stunning that he’d say this out loud. Stunning—& revealing of the extent to which he thinks the Court *must* be unaccountable.”
Justice Elena Kagan weighed in too, though not directly on Alito’s interview. Speaking at the Ninth Circuit Judicial Conference, she remarked: "It just can't be that the court is the only institution that somehow is not subject to checks and balances from anybody else. We're not imperial. Can Congress do various things to regulate the Supreme Court? I think the answer is: yes." Of course she also noted that Congress cannot “do anything it wants. There are limits here, no doubt.” For example, Congress cannot mandate the outcome of a case. The Supreme Court Ethics, Recusal, and Transparency Act made it out of the Senate Judiciary Committee in July, but given the partisan politics at play it is unlikely to be passed by Congress, even if authority to do so exists under the Constitution.
#3 Ethics Innovation Op-Ed Squelched by ABA. The American Bar Association’s Center for Innovation cancelled an op-ed championing regulatory reform that was scheduled for publication last week amidst the ABA’s Annual Meeting in Colorado. Bob Ambrogi broke the news, and published the piece, authored by Maya Markovich, executive director and cofounder of the Justice Technology Association, and Tom Gordon, executive director of Responsive Law. Read it all here. (As a co-author of the report in which the ABA Presidential Commission on the Future of Legal Services recommended the creation of the Center for Innovation back in 2016, I was disappointed to see this news. It seems that the Center’s work is not receiving the support envisioned by the Commission.)
#4 Life Tenure and a Judge’s Fight. How old is too old to remain a judge on the federal bench? Judge Pauline Newman is a 96-year-old member U.S. Court of Appeals for the Federal Circuit. She’s been resisting mandated medical testing, including a neurological evaluation, after other judges and court staff reported concerns about her health. A three-judge special committee voted to sanction her, suspending her from cases for at least a year or until she participates in the medical tests. It is now up to the full Federal Circuit Judicial Council to determine whether the sanction should be adopted .
#5 A Pro Bono Win Doesn’t Mean Reduced Fees. From the Honigman LLP press release championing their victory: “Today, the Michigan Supreme Court reversed a 2021 Court of Appeals decision and ruled that courts cannot reduce attorneys’ fee awards solely because lawyers work on a pro bono basis. The ruling puts Michigan in accord with every other state and federal court that had considered the issue, all of which rejected the notion that fee awards may be reduced where attorneys donate their services.” Read the opinion, authored by Justice Kyra Bolden, here.
In Memoriam
Harvard Law professor Charles Ogletree passed away on August 4. Known widely for his racial and social justice advocacy, as well as his work as a defense lawyer, he also made important contributions to lawyer ethics. In 1989, he served as the moderator of the PBS series “Ethics in America” and among his many writings, authored the article Personal and Professional Integrity in the Legal Profession: Lessons from President Clinton and Kenneth Starr, published by the Washington and Lee Law Review in 1999. His harsh critique of legal ethics more than two decades ago is, sadly, even more true today:
“Even before this ethical quagmire took center stage, the general diagnosis of the state of legal ethics was dire. Everyday Americans questioned the professionalism, trust, and honesty of lawyers, while legal critics noted the increased mistrust and suspicion among attorneys themselves. What has created this bleak impression of lawyers involves the same elements that have permeated the behavior of President Clinton and Kenneth Starr: a decline in civil and courteous conduct, frequent lapses of appropriate ethical and professional behavior, and an increasingly aggressive and competitive drive to ‘win at all costs.’”
Later in the article he discussed the obligations of lawyers, noting that the “ABA Model Rules of Professional Conduct define a lawyer as ‘a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” He questioned “[w]hy and how so many of our profession have forgotten this beginning.” Ogletree concluded with a calling that is very much in the spirit of what motivated me to launch this weekly newsletter. It is a calling for all of us.
“It is we - as American citizens - who must guide the law to ensure that the lawyers and politicians, those we trust to represent our interests in the public sphere, live up to our highest expectations. Again, I challenge each of us to articulate that vision for ourselves and to act upon it. We are the ones who can bring virtue back into our national public life. We are the ones who must do it.”
You can read the full article here.
Lawyer(s) of the Week
Sometimes lawyers will be honored here, sometimes not so much. In the inaugural edition of this newsletter, the award goes to those lawyers who will go down in history for being named as co-conspirators in the criminal indictment of a former president.
Co-Conspirator 1, “an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant’s 2020 re-election campaign attorneys would not.” Likely Rudy Giuliani, whose New York law license was suspended in 2021 over his involvement in the election fraud cases. A committee for the D.C. Board on Professional Responsibility recommended disbarment in June 2023, which will be reviewed by the full board later this year.
Co-Conspirator 2, “an attorney who devised and attempted to implement a strategy to leverage the Vice President's ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election.” Likely John Eastman, who awaits a ruling from the California State Bar Court on his disbarment after a June 2023 hearing.
Co-Conspirator 3, “an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded ‘crazy.’ Nonetheless, the Defendant embraced and publicly amplified Co-Conspirator 3's disinformation.” Likely Sidney Powell, who was sanctioned by a federal judge with fines and mandatory continuing legal education for lies about the election advanced in court.
Co-Conspirator 4, “a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.” Likely Jeffery Clark, who faces discipline charges before the D.C. Bar for dishonesty and interference with the administration of justice.
Co-Conspirator 5, “an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” Likely Kenneth Chesebro, who was referred in a letter by the nonprofit organization Lawyers Defending Democracy (signed by numerous attorneys and academics) for discipline by New York’s Attorney Grievance Committee.
Co-Conspirator 6, “a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” Reportedly Boris Epshteyn, also a lawyer.
Judge(s) of the Week
For their public discussions about Congress’s authority to craft rules shaping the Supreme Court, Justice Samuel Alito and Justice Elena Kagan are our judges of the week. Read Alito’s WSJ interview here. Watch Kagan
contradictcorrect Alito’s view here.
Ethics Reform Watch
The board of governors for the Florida Bar unanimously supported the publication of a new advisory opinion allowing Florida attorneys to be passive investors in alternative business structures (ABS). An ABS allows people who are not lawyers to invest in and make decisions about the organization. In the U.S., currently only Arizona and Utah permit ABSs, along with Washington D.C. on a more limited basis. (Other countries including England and Wales, and Australia, have allowed them for many years.) So while Florida lawyers cannot themselves create or work for an ABS in their home state, this opinion would allow them to invest elsewhere. The opinion tracks ABA Formal Opinion 499, which similarly permits such investment. It will become final without further action, unless comments are received, which would require the board to consider them before adopting the opinion. Learn more here.
Recommended Reading — Recent Scholarship
Recording Judges: Filling Gaps to Improve Judicial Discipline by Sarah M.R. Cravens, University of Tulsa College of Law. From the abstract:
“Many cases of judicial misconduct – especially those about communicative conduct by judges – simply go unreported from the outset because the stakes are too high for a potential complainant to risk losing the ‘he said/she said’ contest with a judge in the absence of adequate objective evidence. … This article considers the gaps in pursuit and determination of judicial misconduct cases in the absence of audio or video recordings of judicial conduct, why they matter, and how those gaps might be filled by more regular recording of official judicial conduct.”
Efficiency, Ethics, and Algorithms: The Implications of AI on the Legal Profession and the ABA Model Rules by Sara Khan and Elizabeth Powers, University of Michigan. From the abstract:
“The rise of new AI language models has led to a wave of excitement and trepidation about how such tools might change the way businesses operate. With their remarkable ability to create polished content, AI’s potential to transform the service economy is self-evident. This potential will also impact the legal profession. … While there are a few legal-specific AI tools available, they are not yet widely available; ChatGPT is relatively inexpensive, and in some cases, free. ChatGPT has the potential to help attorneys work more efficiently and effectively. And yet the ABA Model Rules are silent on how — or even whether — to use ChatGPT. The second half of this paper highlights common scenarios in which an attorney might use ChatGPT, and which Model Rules apply. In doing so, the paper speaks to our current moment, one in which lawyers are considering a new tool, and are unsure of what the potential ethics rules implications might be.”
A Better Understanding of How to Improve Demographic Diversity in Federal Appellate Law Clerk Hiring by Veronica Root Martinez, Duke Law, reviewing Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals, forthcoming in the Harvard Law Review. An excerpt:
“In short, I am painfully aware of the ways in which the legal profession enacts a multitude of barriers that make it harder for Black law students and lawyers to obtain the credentials that are considered to be the most elite and prestigious. This is why I am immensely grateful for the careful and detailed work Judge Fogel, Professor Hoopes, and Justice Liu did to prove what was already obvious to so many of us. Their Article is expansive and aims to provide critical information and insight about law clerk diversity from actual sitting federal courts of appeals judges. The authors are overwhelmingly successful in their task. Through their in-depth interviews with federal courts of appeals judges, they gathered information about how judges hire and gleaned numerous insights.”
Read the full review (and download the Fogel/Hoopes/Liu article) at Jotwell.
This Week in Ethics History
August 9, 1995. More than one hundred years after its founding in 1878, the American Bar Association elected Roberta Cooper Ramo as its first female president.
August 12, 1969. The American Bar Association’s Model Code of Professional Responsibility was adopted at the annual meeting.
Get Hired
Ethics Attorney, Akin Gump Strauss Hauer & Feld LLP. Advise firm lawyers in multiple jurisdictions on compliance with their ethical obligations, and help protect the firm and its clients from adversity and risk. Based in Dallas, Houston, New York, Philadelphia or Washington, DC office with hybrid work capabilities. Application info and more details here.
Staff Counsel, Office of Legal Ethics Counsel, Supreme Court of Missouri. Provide lawyers informal advisory opinions about the Missouri Rules of Professional Conduct. Legal ethics background preferred, but not required. Preference for applications by August 11. Based in Jefferson City, MO, with partial remote work. Application info and more details here.
Upcoming Ethics Events & Other Announcements
September 1. Submissions and nominations of articles are being accepted for the fourteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the Association of American Law Schools Committee on Professional Responsibility will select from among articles in the field with a publication date of 2023. The prize will be awarded at the 2024 AALS Annual Meeting in Washington, DC. Send submissions and nominations to Samuel Levine at slevine@tourolaw.edu.
September 20-22. ABA National Legal Malpractice Conference, Chicago. Registration 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.
Wisdom for the Week
“Resolve to be honest at all events; and if, in your own judgment, you cannot be an honest lawyer, resolve to be honest without being a lawyer.” — Abraham Lincoln, 1850, as quoted by Charles Ogletree
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Happy Monday — see you next week!
Am I reading this right that the Michigan court held that an attorneys' fees award could not be reduced because it's PRO BONO??? So "PRO BONO" isn't really pro bono.
There's nothing wrong with doing pro bono but if it is real pro bono, there's no fee at the end. That's called a contingency case. True pro bono is that which will not result in a fee award no matter what.