Legal Ethics Bonus Content No. 3 - Legal Ethics on the Upcoming SCOTUS Docket (09.28.23)
Get ready for First Monday...
Welcome to your third 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. This material offers a deeper-dive into issues touched upon in the weekly roundup and sometimes covers breaking news that can’t wait until Monday. (If you need a comp paid subscription to read this full bonus content post, let me know at legalethics@substack.com - no questions asked. Otherwise, thank you for reading and supporting this work!)
Here’s a preview of today’s bonus content, which prepares you for the opening of the Supreme Court’s 2023 Term on Monday, October 2. This post covers cases on the Court’s docket that involve legal ethics and provides important context from previous terms.
But first, some breaking news. The Supreme Court announced Tuesday that it will live-stream an audio feed of oral arguments this term! (H/T Fix the Court)
It would be even better if they’d join courts like the Supreme Court of Texas which has live-streamed video of oral arguments for many years and even has its own YouTube channel. Maybe next term?
Now, onto the focus of this bonus content post — Supreme Court cases involving legal ethics.
In 2010, I wrote a law review article called “The Supreme Court’s Increased Attention to the Law of Lawyering: Mere Coincidence or Something More?” I described what has turned out to be the high-water mark for cases involving legal ethics issues take up by the Supreme Court in a particular term. There were seventeen — seventeen! — such cases during the 2009 Term. Here’s the article abstract:
The United States Supreme Court considered seventeen cases raising issues related to the role of attorneys and the practice of law during the 2009 Term. This body of cases represents a substantial departure from dockets in recent history, where typically the Court took up less than a handful of cases involving regulation of the legal profession. While some might consider the increased number of cases addressing the law of lawyering a mere coincidence, this article contends that something more is occurring. The Court’s decision to devote so much of its limited time to these matters is noteworthy not only for the individual issues resolved, but also for the cases’ existence, indeed dominance, on the docket.
This article is the first to present a comprehensive overview of the Supreme Court’s newest lawyering cases. Broadly speaking, the cases fall into two categories: access to sound lawyering and protection from bad lawyering. The first group of cases addresses access to legal advice, questioning First Amendment protection of attorney advice and advertising, the application of fee-shifting statutes to encourage legal representation for meritorious cases, and the availability of an immediate appeal to preserve attorney-client privilege in the face of a court order to disclose protected materials. The second group of cases involves harms caused by lawyers. These cases include prosecutorial misconduct and ineffective assistance of counsel claims where a criminal defense attorney lacks the requisite experience, offers insufficient mitigation evidence during sentencing, delivers a poor closing argument, gives faulty advice, misses an essential filing deadline, or fails to request a limiting instruction.
Part I of this article examines the cases individually and highlights the ways each case presents critical issues related to the practice of law and the regulation of lawyers. Part II turns to a collective reading of the cases, reflecting on the Court’s heightened interest in affairs of the legal profession, and suggesting insights that might be drawn by viewing these cases as part of a larger picture, rather than standing alone. Though the full measure of these cases’ impact on professional responsibility jurisprudence will be realized only with the passing of time, this article offers three preliminary observations. First, when read together, the cases reveal a troubling pattern of limits on access to legal advice as well as harms caused by bad lawyering. Second, the cases offer fundamental lessons for those involved in future regulation of the legal profession. Third, the cases illustrate the importance of constitutional considerations to the field of lawyer ethics.
You can read the full article here if you want to know more about the cases from the 2009 Term. If you’re wondering what happened after 2009, I haven’t kept a perfect count. But, in the 2010 Term the Supreme Court decided eight cases involving legal ethics and opened with seven during the 2011 Term. We’ve not since seen numbers like in 2009, however.
But what about the Supreme Court’s docket for the upcoming term? So far we are nowhere near seventeen, but to be fair the Court has only granted cert to a couple few (as of 9/29) dozen cases to date. Yet even with this small number of cases in the mix, there are several to watch involving legal ethics issues. Here’s an overview.