Legal Ethics Roundup No. 4 - Lawyers Indicted, Rasa Lands $1M, Judging TikTok, Legal Academia #MeToo Continues, Religious Training as Sanction & More (08.21.23)
Lawyers Indicted, Rasa Lands $1M, Judging TikTok, Legal Academia #MeToo Continues, Religious Training as Sanction & More
Welcome
Thank you for being here! Nearly 300 subscribed and more than 3,100 visited in the first two weeks — AMAZING! Let’s continue growing our community. You can help by sharing the Legal Ethics weekly roundup with colleagues, friends, neighbors, family, and anyone who cares about the future of our democracy. And a special welcome to international friends. (We have subscribers from 13 countries!) I promise to broaden the horizons of this newsletter to your shores with a new internationally-focused feature soon.
Be sure to subscribe—it’s free!—so that you’ll never miss a Monday morning delivery. And please consider becoming a paid subscriber, which helps to support this weekly newsletter and also unlocks special bonus content, along with the ability to post comments.
Highlights from Last Week - Top Five Headlines
#1 Eight Lawyers Indicted With the Former President. Exactly one week ago, late in the evening, the former president was indicted by Fulton County District Attorney Fani Willis along with eight lawyers, among others. This was “both stunning but not surprising at the same time, given what we already have learned about these lawyers’ lies in the election fraud cases,” as I wrote in last week’s Bonus Content. The lawyers are Robert Cheeley, Kenneth Chesebro, Jeffrey Clark, John Eastman, Jenna Ellis, Rudolph Giuliani, Sidney Powell, and Ray Smith.
#2 Rasa Legal Lands $1.1M in Funding. This headline makes our top five for a few reasons. First, it’s an example of a successful outcome from Utah’s regulatory reform, which permits outside ownership and investment in law practices despite the ethics rule banning it in most U.S. jurisdictions (the only exceptions are Arizona, and DC on a limited basis). Second, it’s a signal of continued interest in investment for justice tech. Third, and most important, it means Rasa founder and CEO Noella Sudbury can expand her business, which offers affordable, easily-accessible criminal record expungement. This matters because expungement increases “access to housing and jobs, higher wages, and a better quality of life for those who have been held back by background checks,” as explained in the announcement of this important investment, available here.
#3 Judge Defends His TikTok Videos as Impartial and Unrelated to His Work. A judge from Bergen County Superior Court found himself defending “admittedly vulgar” language and sexual content from his TikTok videos that recently came to light. According to the Supreme Court of New Jersey Advisory Committee on Judicial Conduct complaint, at least one was recorded in his judicial robes. His argument? The videos didn’t endorse a particular viewpoint and were "unrelated to anything he did as a judge." As I often tell my law students and my teenagers, just because you can doesn’t mean you should. (He might want to read last week’s Recommend Reading selection on “Lawfluencers” and their use of social media like TikTok. It is also worth noting that apparently these are the types of cases you might handle if you land the job with the New Jersey Supreme Court, posted below.)
#4 More on #MeToo in Legal Academia. The fallout continues from one of the stories in last week’s roundup which featured an exchange on X/Twitter about sexual harassment in law school hiring from professors Christa Laser and Maybell Romero. Law360’s reporting by Aebra Coe last Monday added several other women coming forward to share even more disturbing stories of inappropriate behavior they endured as students at George Mason University’s law school. Above the Law also has coverage. And the podcast Strangers on the Internet offers an exclusive interview from professor Irina Manta with Laser. Listen here (68 minutes).
#5 Mandatory “Religious Liberty Training” for Attorneys? This nearly made last week’s top five, and since it continued in the headlines I’ve included it here. Texas federal judge Brantley Starr (yes, the nephew of Ken Starr) recently issued a contempt order requiring three Southwest Airlines in-house attorneys to participate in “religious liberty training.” That sanction is paused, at least temporarily, to allow for briefing from the parties. Learn more here. (You might recall that Judge Starr made an appearance in last week’s roundup too for his AI policies.)
Ethics Reform Watch
A new poll revealed that 78% favor Congress taking action to address U.S. Supreme Court ethics. According to the poll, this “sentiment crosses partisan lines – including 65% of Republicans and 63% of conservatives – and is embraced by at least three-fourths of voters in every region of the country.” Read more here.
In the latest installment of his podcast Contempt of Court, justice correspondent and columnist for The Nation Elie Mystal took “a deep dive into jurisdiction stripping,” which is one of the tools Congress might deploy to reform the Supreme Court. His guests include Harvard Law School professor Ryan Doerfler and Michigan Law School professor Leah Litman. Listen here (55 minutes).
Recommended Reading — Recent Scholarly Articles, Essays, Op-Eds
This week’s recommendations include two new scholarly articles and two shorter pieces. The first article proposes an alternative (and arguably more ethical) process for evaluating law schools. The second article offers a meaningful solution to the Supreme Court’s continued refusal to adopt a code of ethics—the creation of a Supreme Court Ethics Counsel and Inspector General. The article’s author Richard Painter served as the chief White House ethics lawyer for the George W. Bush administration, so his recommendations come with that inside perspective. You might read it after the op-ed by Jim Moliterno, which offers a more nuanced critique of the justices’ defenses about their lack of disclosures for gifts and travel than what I’ve seen elsewhere. The final recommended read this week offers lessons about the use of AI.
Rankings Without U.S. News: A Revealed Preference Approach to Evaluating Law Schools by Jesse Rothstein, University of California Berkeley, and Albert Yoon, University of Toronto. From the abstract:
Since their inception in 1989, the U.S. News & World Report law school rankings have influenced how schools, students, and the legal profession itself think about legal education. In the Fall of 2022, however, several of the most selective law schools formally withdrew from the annual rankings. In so doing, these schools laid bare longstanding criticisms of the rankings’ questionable criteria and opaque methodology. While the long-term effect of this boycott remains to be seen, school rankings are likely here to stay. In this Article we design a more informative approach to rankings, based on actual decisions students make. … While existing school rankings sow more confusion than clarity, our analysis provides a rigorous and transparent alternative, and a blueprint for redesigning school rankings.
SCOTUS House: Can a Supreme Court Ethics Lawyer and Inspector General Help Get this Fraternity Under Control by Richard Painter, University of Minnesota. From the abstract:
In 2023, the United States Supreme Court is immersed in an ethics crisis of unprecedented proportions. Public confidence in the Court is at an all-time low and Congress is considering action. The Court is less likely to police itself than it was a generation ago when Justice Abraham Fortas resigned over a scandal that was probably less serious than that facing at least one justice today. This article discusses the Court’s recent scandals and explains multiple factors that make the Court prone to ethics lapses, perhaps more so than the other two branches of government. This Article then proposes that a partial solution to the Supreme Court ethics crisis would be to have a dedicated ethics lawyer and an inspector general for the Supreme Court.
“3 Ways Justices' Disclosure Defenses Miss The Ethical Point,” Law 360 by Jim Moliterno, Washington & Lee University. From the op-ed:
The recusal rule for judges is anything but fixed and indisputable. Instead, it expects careful balancing and consideration of ethical precepts. In the field of professional ethics, it is not enough to say, "I followed the rules." Instead, an ethical professional should think carefully about the ethical principles and their application to the specific situation faced by the judge, lawyer or prosecutor.
In the absence of a code of ethics drafted to remove any hint of discretion, we rely on the justices to be able to thoughtfully use ethical judgment; unfortunately two of them have shown that they have difficulty in practicing ethical decision making.
“Doubling Down on Dumb: Lessons from Mata v. Avianca Inc.,” American Bankruptcy Institute Journal by Nancy Rapoport, University of Nevada Las Vegas, and Judge Cynthia Norton, U.S. Bankruptcy Court. From the abstract:
This short essay, done in a question and answer format, talks about the bad ethics decisions that the lawyers made in Mata v. Avianca, all stemming from their misuse of artificial intelligence.
Lawyer of the Week
When Fani Willis won her election in 2020, making her the first woman elected as district attorney for Fulton County, she declared: "My career has taught me, no matter the political pressure, just do what's right. And no matter if you were at the state Capitol or the slums, you will be held accountable if you commit a crime in my community." Little did she know that nearly three years later, she would be indicting the former president and eight lawyers, among others. Learn more about her from this NPR profile. She’s our lawyer of the week.
Judge of the Week
Headline #1 of the inaugural Legal Ethics weekly roundup listed John Eastman as a co-conspirator in the Department of Justice indictment. His attorneys immediately asked for the California State Bar disciplinary proceedings against him to be put on hold, though he hadn’t been charged. Even with him actually being indicted last Monday in the latest out of Fulton County as noted above, Judge Yvette Roland rejected that request late last week. At issue is Eastman’s license to practice law in California and, potentially, other sanctions. She is not letting the Bar proceedings, which began earlier this summer, be further delayed and for that reason, she’s our judge of the week. Things resume on Tuesday at 10AM pacific and are scheduled to continue all week. You can watch live here. I’ll be there!
This Week in Ethics History
August 21, 1878. The American Bar Association was formed by 75 lawyers from 20 states and the District of Columbia, who met in the town hall courtroom in Saratoga Springs, New York. The first president of the ABA was James Overton Broadhead of Missouri. At the time, only white men could be members. The organization permitted the first woman to join in 1918 and excluded African Americans until 1943. The National Bar Association was formed on August 1, 1925, by five African American lawyers who all had been denied admission by the ABA, four men and one woman.
New this Week! Accountability in Our Democracy
This roundup brings you a new regular feature covering the legal profession’s accountability in our democracy. Here we will explore issues like the special professional obligations of lawyers and judges, how they are (and sometimes aren’t) held to those duties, the organizations dedicated to holding the legal profession accountable, proposals for reform, and why understanding legal ethics is vital to the future of our democracy. This week’s focus is on the ways lawyers can be held accountable.
Lawyers, like anyone, must follow the law. The rules of professional conduct allow a lawyer to discuss the legal consequences of any proposed course of conduct with a client and a lawyer may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. But, the rules are also clear that a lawyer cannot counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.
So, what happens if a lawyer doesn’t follow the law? They face the same civil or criminal consequences as anyone else. Lawyers may also face professional liability for their actions. This can include malpractice damages (generally the economic difference between what a client would have received if the underlying matter had been handled non-negligently, and what the client actually received) and discipline (for example fines, mandatory education, supervision, suspension, or disbarment). Discipline is administered locally by the state bar association or an arm of the state supreme court. Each state differs in resources and enforcement. The ethics rules and standards are unique to each state and, in some instances, directly conflict.
If this all seems inefficient, if not crazy, well, you’re not alone in thinking this. Academics have debated this from time to time. Fred Zacharias, whom I never had the good fortune to meet but was a tremendous mentor and friend to many legal ethics scholars, 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.
Should there be a centralized authority for licensing or discipline? If so, who would do it? The Federal Trade Commission might make sense. It has investigated anti-competitive state bar behavior in the past. Congress could create a new agency, though the Supreme Court doesn’t seem too likely to look favorably on that. (We’ll know more about the Court’s view on Congress’s authority to create new agencies after it hears a case in October involving the Consumer Financial Protection Bureau.) Another option, one floated by Zacharias, would be for states to all follow the exact same set of ethics rules, but still administer them locally. We will explore these, and other potential reforms, in a future post.
Get Hired
Conflicts Attorney, Paul Hastings, Washington DC. This role is responsible for assisting the firm’s Office of General Counsel, Compliance Officer, and Conflicts and New Business Intake Department with legal research, analysis, and counsel on matters relating to conflicts of interest, ethics and professional responsibility issues, compliance, and other matters. More details here.
Deputy Ethics Counsel, New Jersey Courts. Remember headline #3 from last week’s roundup? New Jersey is already hiring! Handle all aspects of lawyer discipline from investigation to appearances before the Supreme Court of New Jersey and the Disciplinary Review Board. Based in Ewing, NJ, with possibility of two days/week remote. More details here.
Conflicts Lawyer, Dentons, Canada. Review and analyze conflict of interest reports with respect to new and existing clients, new mandates, potential lateral hires and firm responses to RFPs. Assess conflicts compliance with relevant rules of professional conduct and the firm’s own conflicts policies. More details here.
Deputy Director of the Departmental Ethics Office, U.S. Department of Justice. Manage the office, which provides advice and guidance to Department leadership, career employees, and managers on the interpretation and application of the ethics rules. Based in Washington DC. Application due September 1. More details here.
Upcoming Ethics Events & Other Announcements
August 22-25 — John Eastman California State Bar Hearing. Members of the public are permitted to watch the proceedings live. They begin Tuesday, August 22 at 10AM pacific and are set to start at the same time the rest of the week. The schedule is here and the link to watch is here.
August 25 — What Hat Am I Wearing? Legal Ethics in Corporate, M&A, and Other Matters, virtual. Free CLE from Nixon Peabody. More info here.
August 27-29 — Seventh Circuit Judicial Conference, Lake Geneva, WI. I will be speaking with my co-author Hannah Johnson, California Western Law School, about our book Shortlisted: Women in the Shadows of the Supreme Court, in conversation with Judge Diane Wood, drawing from an interview the three of us did earlier this year for Duke Law’s Judicature magazine. Other speakers include Dan Linna, Northwestern Law, on AI and the Law, and Wendy Muchman, Northwestern Law, along with Terri Garland, Attorneys’ Liability Assurance Society, on Ethical Implications of Remote and Multi-Jurisdictional Practice and other Significant Developments in Legal Ethics. Justice Amy Coney Barrett is also scheduled to deliver remarks. More info here.
September 13 — Women Lawyers in Leadership, NYC & virtual. Topics include leadership, ethics and professional responsibility, DEI, law practice management and related themes. More info here.
Wisdom for the Week
“The arc of the moral universe is long, but it bends toward justice.” — Dr. Martin Luther King, Jr., 1968
Keep in Touch
Feedback? This weekly roundup is a work-in-progress. Please share feedback about what you love (or don’t love) and what you’d like to see here in the future.
News tips? Announcements? Events? Email legalethics@substack.com - but be sure to subscribe first, otherwise the email won’t be delivered.
Did a brilliant colleague forward this to you? If so, subscribe now to get the next Legal Ethics weekly roundup delivered directly to your in-box.
Have a magnificent Monday! See you next week.