Legal Ethics Bonus Content No. 6 - Celebrating the Zacharias Prize Winner (11.30.23)
Jon Lee wins the prestigious Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility with his article "Private Sanctions, Public Harm?"
Welcome to your sixth installment of Bonus Content from the Legal Ethics Roundup!
In addition to the (FREE!) weekly roundup every Monday morning, I regularly post bonus content for paid subscribers. I’ve removed the paywall for this bonus post, celebrating a prestigious writing prize in the field of legal ethics.
Each year the Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility is awarded to an outstanding work in legal ethics by the Association of American Law Schools (AALS) Section on Professional Responsibility. As the AALS website notes: “Zacharias, a law professor at University of San Diego Law School, died in 2009 at the age of 56, after a career as a nationally known expert in professional responsibility, writing on the ethical duties that lawyers have to the legal system and society as well as clients. This prize was established to honor and carry on his work.”
This year’s recipient is Jon J. Lee (University of Maine) for his article Private Sanctions, Public Harm?, 48 BYU L. Rev. 1255 (2023). He will be honored at the AALS annual meeting in January 2024 in Washington DC.
But, I also thought we should celebrate this award here at the Legal Ethics Roundup, both to learn more about Professor Lee’s article and his work as a scholar, and also to honor and remember Fred Zacharias.
So, this Bonus Content post features a Q&A with Professor Lee about his award-winning article as well as reflections about Fred Zacharias’ life and a full list of winners of the Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. (Did you know there have been more than 20 recipients over the years?)
This annual award is a favorite of mine, in part because I recall the first time it was announced. Bruce Green (Fordham) shared a moving tribute about his dear friend and co-author as members of the AALS Section on Professional Responsibility gathered over a meal. His memories of their relationship showed me that this group is a community I wanted to learn from and contribute to as an academic. I didn’t know Fred Zacharias personally, but I’ve felt his influence live on through his scholarship and those whose own work has been shaped by their relationships with him.
Readers of the Legal Ethics Roundup are no strangers to the work of Professor Lee, who is very much deserving of the Zacharias Prize. Another one of Lee’s articles—Reimagining Attorney Regulation—was recently featured as “recommended reading” in Roundup No. 6.
Let’s focus now, though, on the article that secured Lee the Zacharias prize, Private Sanctions, Public Harm? Here’s the abstract:
The legal profession has a secret. In response to widespread public distrust in the profession’s ability to regulate itself, disciplinary authorities have undertaken modest efforts over the last several decades to make their activities more transparent. They have opened up their formal proceedings, publicized the identities of sanctioned attorneys, and shared information about their work online. But at the same time, most have quietly continued to resolve cases of ostensibly “minor” and “isolated” misconduct through private sanctions, keeping the identities of disciplined attorneys – and their misconduct – hidden from view.
This Article takes a comprehensive look at private sanctions to determine whether their continued use can be justified. It presents the results of an original empirical study on disciplinary systems throughout the country over the past twenty years, including five states that have revealed some details of their private sanctions. These data show that private sanctions are at times being imposed for misconduct that is anything but “minor” and on attorneys whose conduct is anything but “isolated.” Moreover, there is no persuasive evidence that private sanctions are having their intended deterrent effect or adequately protecting the public from the risk of future harm. Unless jurisdictions commit to greater transparency and can demonstrate that their private sanctions are being appropriately administered and are effective, they should not be able to continue disciplining attorneys behind closed doors.
You can download the full article here. And now that you have an overview of the piece, here’s some insight into Professor Lee’s process for writing it.
My Q&A with Professor Jon Lee
RKJ: What inspired you to write the article?
JL: I was working on a different empirical project and came across a state that was imposing private sanctions on lawyers who had engaged in incredibly egregious misconduct. To be honest, I barely realized that disciplinary agencies imposed private sanctions and had no idea how frequently it occurred. I was curious whether that state was an outlier, so I began searching for as much as I could about how all jurisdictions use them. In fact, I realized that what made that state an outlier was that they shared any information on their practices at all.
RKJ: Your article exposes the problematic private process for lawyer sanctions. Do you think similar concerns exist for judicial discipline?
JL: We know even less about judicial discipline than lawyer discipline, and the lack of transparency is incredibly concerning. Moreover, I worry that there are even fewer investigations of judicial misconduct to begin with because often those having knowledge of that misconduct—lawyers—fear adverse consequences for themselves or those they represent.
RKJ: Even as a scholar of lawyer discipline for nearly two decades, I was surprised to learn from your article how differently states address private discipline. What are your thoughts about a federalized discipline process?
JL: I have not thought as much about having a federalized discipline process, but it is an intriguing idea and would certainly avoid the dramatic disparities we see among states. In many ways, the legal profession is still structured based on the assumptions that lawyers work in small geographic areas and that community norms are paramount, but that is increasingly not the case. [Side note: LER readers might recall my post in Roundup No. 4, where I noted that Zacharias “wrote a seminal article three decades ago called Federalizing Legal Ethics. He made the case for a uniform code of ethics across the United States and its territories, and argued that this would improve the public perception of lawyers because we’d follow a single set of ethics rules instead of a bunch of contradictory standards.” Perhaps we’ll hear more from Professor Lee about Zacharias’ proposal, and its intersection with his own work, in a future article?!?]
RKJ: My guess is that most new lawyers do not take into consideration a state bar discipline process when they decide where to take the bar exam and become licensed to practice. Given what you learned in conducting your research for this article, is there a state with the best policies/practices if one is undecided about where to become licensed?
JL: My recurring struggle in examining the flaws in lawyer discipline is that I only know about the jurisdictions that choose to share information about their processes. While there are some in this group that do better than others, I am even more concerned about jurisdictions that share almost nothing at all. I recommend that those considering whether to practice in a jurisdiction look at what the jurisdiction shares about its processes online and preference those jurisdictions that share more robust information about what is expected of lawyers.
RKJ: You conclude by observing that it’s “only a matter of time before the public realizes that many jurisdictions are maintaining these shadow disciplinary procedures—and it will demand answers.” I’m worried that the public doesn’t have sufficient knowledge about the legal profession to realize just how problematic the “shadow” discipline you document is for the profession and for the rule of law. What makes you so confident that the public will “demand answers”? If the public doesn’t, what responsibilities do law students, law professors, judges, lawyers, and government officials have to heed your cautions/warnings?
JL: My current work in progress is on the failings of Rule 8.3, the mandatory reporting rule. One of the paramount obligations of those in our profession is to ensure that we identify and root out those who are not fit to practice. But we also have an obligation to educate the public about what is expected from those in our profession and to call out lawyers who fail to meet those standards. This includes not only the lawyers who were involved in the plot to overturn the results of the 2020 election, but also those who abuse their positions of authority to the detriment of their clients or those in their local communities.
RKJ: How has Fred Zacharias’ scholarship influenced your own writing and research?
JL: Fred Zacharias’ seminal work on the purposes of lawyer discipline was one of the first articles I read when I began writing on legal ethics, and it continues to inspire me to this day. In all of his articles he deftly combined the theoretical with the practical, always considering the implications of his research on those who regulate lawyers and other relevant stakeholders. Because there is more data on lawyer discipline available now, I often conduct empirical research—but it invariably ties back to his work. He was ahead of his time.
RKJ: What writing tips can you offer to other authors?
JL: I spend much more of my time thinking than writing. I usually have three or four article ideas that are floating in my head at one time, and I decide which one to pursue after talking through them with my colleagues and others in the field. I also find that while I am working on one project that other article ideas come flooding in. I make sure to write down all those ideas, and more often than not one of those ends up becoming the subject of my next project. I do much of my writing while I’m on a vacation or staycation; I turn off the Internet, remove as many distractions as possible, and immerse myself in the process. Once I have worked through the ideas in my head over the span of several months, I can finish a draft within the span of a few weeks.
RKJ: Anything else you want me to add in featuring your article and celebrating your honor winning the Zacharias Prize?
JL: I just want to thank you for starting the Legal Ethics Roundup. It is a much-needed addition to the field, and I look forward to seeing it grow.
I didn’t expect that kind shoutout to the LER - but thank you for it, Professor Lee!
More reflections on Fred Zacharias’ life along with a complete list of the winners of the Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility follow below.
Fred Zacharias published at least 40 scholarly papers, several during his last year of life including:
The Myth of Self-Regulation, Minnesota Law Review (2009)
True Confessions About the Role of Lawyers in a Democracy, Fordham Law Review (2009)
Evidence Law and Ethics Rules, Professional Lawyer (2009)
The Duty to Avoid Wrongful Convictions: A Thought Experiment in the Regulation of Prosecutors (2009)(with Bruce Green)
Rationalizing Judicial Regulation of Lawyers, Ohio State Law Journal (2009)(with Bruce Green)
Integrity Ethics, Georgetown Journal of Legal Ethics (2009)
You can read these (and the other 30+) articles on his SSRN page.
At the start of this post I mentioned Bruce Green’s moving tribute at an AALS Professional Responsibility Section gathering. Here’s what he wrote at the Legal Ethics Forum blog to announce the difficult news of his friend’s passing:
It is with sadness that I report the death of Professor Fred Zacharias on November 8, at the much too young age of 56, after a valiant, months’-long battle with a rare form of cancer. Fred was a good friend of mine and of many others in the legal ethics community as well as a leader in, and outstanding contributor to, the field.
Fred was a prolific scholar. It was my privilege to co-author nine articles with him over the past decade, and that was just a small proportion of his prodigious output. Fred was happy to tackle, and bring his insights to, virtually any issue in the field, and rarely turned down a chance to contribute to a conference or symposium. A former defense lawyer, Fred often brought his experiences from practice into his scholarship, while at the same time keeping current on academic writings in order to advance scholarly conversation in the field. Fred was among the handful of most frequently cited scholars of his generation.
As past chair of the AALS Professional Responsibility Section and regular contributor to the section’s newsletter, Fred sought to advance teaching no less than scholarship. Having attended many of Fred’s talks at the ABA National Conference and at academic conferences, I can attest that Fred took his role in the classroom as seriously as he took his writing. He also served the profession with dedication, including as a consultant on the Restatement of the Law Governing Lawyers and on other ALI projects and as a member of his city bar’s ethics committee. In recognition of his outstanding contributions, Fred received numerous distinctions at the University of San Diego School of Law, where he taught for almost two decades, including most recently as the Herzog Endowed Research Professor and, this summer, as the inaugural holder of the Donald Weckstein Summer Research Professorship.
On a personal note, among the things I most valued in our friendship were Fred’s generosity of spirit and his commitment to friends and family. Fred is survived by his wife, Sharon, and by his sons, Eric and Blake, and by his mother, brother and sister-in-law. Letters of condolence may be sent care of the law school. I mourn his passing.
-Bruce Green
Here are several other tributes.
From the San Diego Union-Tribune, “Fred Zacharias; USD Professor a Nationally Recognized Legal Ethics Scholar”
Though he had been teaching for more than two decades, professor Fred Zacharias insisted on rising at dawn to prepare for his constitutional law class at the University of San Diego School of Law, always seeking new ways to captivate his students and engage them in critical thinking.
“He would get up at 5:30 in the morning,” said his wife of 25 years, Sharon Zacharias. “Even though it was a course he had taught countless times, he wanted to make it fresh for the students. He was just very thoughtful and diligent.”
From the University of San Diego, “In Memory of Fred C. Zacharias, USD Herzog Research Professor of Law 1953-2009”
"Fred Zacharias was one of the finest legal ethics scholars in the United States, a genuine leader in the field. He was also a wise and generous colleague,” said Georgetown University Professor of Law and Philosophy David Luban. “This is a great loss not only to his family and friends, but to the profession as well.”
“At the start of his career,” Luban continued, “Fred did a pioneering empirical study of how much lawyer-client confidentiality matters to what lawyers tell their clients and what clients are willing to tell their lawyers. He was the nation's leading expert on the responsibilities of prosecutors, about which he wrote both solo and in a number of excellent articles he co-authored with Bruce Green. Fred wrote thoughtfully about the relationship between concepts of professionalism and regulatory strategies for lawyers. He was surely among the most prolific scholars in legal ethics, and among the most thoughtful.”
From Faust Rossi, “Tribute to Professor Fred Zacharias”
I met Fred Zacharias the first day that he began his law teaching career in the fall of 1983, and we quickly became friends. During the next six years that he spent at Cornell Law School, many aspects of our professional and social lives were entwined. We both taught the Trial Advocacy course—I in the fall term, he in the spring term. We shared the same administrative assistant. For several years we lived in the same neighborhood. We jogged together. We talked regularly about our research interests, about our approach to teaching, about sports, about family. We were close, and his friendship made me a better man. Although I was twenty years older than Fred and had about seventeen years more teaching experience, I learned at least as much from him as he learned from me. It was clear from the start that Fred had chosen the right profession. I thought at the time that Fred would become a model for law professors everywhere, and as we now know, he proved many times over that I was correct. Fred had all the qualities for professional success. He was intelligent, conscientious, disciplined, and hardworking. These virtues guaranteed that he would be the extremely productive author that he became and that allowed him to take his place as a nationally famous scholar in the areas of professional responsibility and constitutional law.
From Orly Lobel (San Diego), “In Memoriam: Fred Zacharias”
I am heartbroken from the passing of my dear colleague Fred Zacharias. Fred has been bravely battling cancer this past year. This weekend he passed away surrounded by his loved ones. Fred was an important scholar in constitutional law and professional responsibility. … Before coming to USD he taught at Cornell and George Washington Universities.
Fred was a wonderful colleague and mentor. He cared deeply about the institution, his colleagues and his students. He had a unique sense of humor and knew how to be a true friend. When I joined USD a few years ago, Fred was tremendously helpful and generous with his time, reading my drafts carefully and offering his thoughtful comments. Last year, Fred and I both participated in a NYC conference on lawyering. In his talk, and the paper published in the Fordham Law Review symposium, he describes … himself as a young lawyer dedicated to using law to making a difference, and inspired by “the important contributions of attorneys in American history, starting with the Founding Fathers and culminating in the lawyer heroes of the labor and civil rights movements, such as Clarence Darrow and Thurgood Marshall. I had read all the right books--ranging from Darrow's biographies to To Kill A Mockingbird. My professional career was built on the belief that attorneys usually are the catalysts for progressive reforms in the legal and social structures of the nation.” Fred continues his article by critically reflecting on the role of lawyers in democracy and in preserving a democratic climate in society. The article gives merely a glimpse of Fred’s important scholarly contributions. But more than that, to all of us who knew him, it represents some of the qualities we loved most about Fred: insightful, honest, deeply moral, and first and foremost, a good human being.
What an honor it is for those who receive the Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility — each joins his legacy, to borrow the words from Professor Lobel’s tribute, as a scholar who is “insightful, honest, deeply moral, and first and foremost, a good human being.”
Last, but certainly not least, here is a list of past winners of the prize. They are an impressive group of scholars.
2011
Alexandra Lahav, Portraits of Resistance: How Lawyers Respond to Unjust Proceedings, 57 UCLA L. Rev. 725 (2010)
Sung Hui Kim, Lawyer Exceptionalism in the Gatekeeping Wars, 63 SMU L. Rev. 73 (2010) (Honorable Mention)
2012
Michael Cassidy, Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures, 64 Vand. L. Rev. 101 (2011)
2013
Rebecca Aviel, The Boundary Claim's Caveat: Lawyers and Confidentiality Exceptionalism, 86 Tul. L. Rev. 1055 (2012)
2014
Dana Remus, Out of Practice: The Twenty-First Century Legal Profession, 63 Duke L.J. 1243 (2013)
Norman Spaulding, The Privilege of Probity: Forgotten Foundations of the Attorney-Client Privilege, 26 Geo. J. Legal Ethics 301 (2013) (Honorable Mention)
2015
Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 U.C. Davis L. Rev. 1591 (2014).
2016
Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 NYU L. Rev. 71 (2015)
Morris A. Ratner, Class Counsel as Litigation Funders, 28 Geo. J. Legal Ethics 271 (2015)
2017
Leslie C. Levin, Lawyers Going Bare and Clients Going Blind, 68 Fla. L. Rev. 1281 (2016)
Kate Levine, Who Shouldn't Prosecute the Police, 101 Iowa L. Rev. 1447 (2016)
2018
Robert W. Gordon, The Return of the Lawyer-Statesman?, 69 Stan. L. Rev. 1731 (2017)
2019
Eric S. Fish, Against Adversary Prosecution, 103 Iowa L. Rev. 1419 (2018)
2020
Michael Moffitt, Settlement Malpractice, 86 U. Chi. L. Rev. 1825 (2019)
Jessica A. Roth, The "New" District Court Activism in Criminal Justice Reform, 74 N.Y.U. Ann. Surv. Am. L. 277 (2019)
2021
Noah A. Rosenblum, Power-Conscious Professional Responsibility: Justice Black’s Unpublished Dissent and a Lost Alternative Approach to the Ethics of Cause Lawyering, 34 Geo. J. Legal Ethics 125 (2021)
Irene Oritseweyinmi Joe, Regulating Mass Prosecution, 53 U.C. Davis L. Rev. 1175 (2020) (Honorable Mention)
2022
W. Bradley Wendel, Lawyer Shaming, 2021 U. Ill. L. Rev. 175 (2021)
Angela Onwuachi-Willig & Anthony V. Alfieri, (Re)Framing Race in Civil Rights Lawyering, 130 Yale L.J. 2052 (2021)
2023
Matthew Kim, For Appearance's Sake: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession, 83 Ohio St. L.J. 529 (2022)
2024
Jon J. Lee, Private Sanctions, Public Harm?, 48 B.Y.U. L. Rev. 1255 (2023)
I'll be back Monday with another Legal Ethics Roundup. Until then, thank you for reading and reflecting upon the memory of Fred Zacharias and his incredible legacy of scholarship that endures.