Legal Ethics Roundup No. 7 - Eastman Testifies, Montana AG Ethics Complaint, Wisconsin Justice Impeachment Threat, ABA 8.4(g) (Lack of) Enforcement, Diversity Removed from FL Ethics & More (09.11.23)
Eastman Testifies, Montana AG Ethics Complaint Filed, Wisconsin Justice Impeachment Threat, ABA 8.4(g) (Lack of) Enforcement, Diversity Removed from FL Ethics, New Oregon Bar License Process & More
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Today is the 22nd anniversary of 9/11. We all remember where we were when we heard the news. I was in the middle of an interview to become an assistant city attorney for Charlottesville, Virginia, when someone interrupted to tell us about the second plane. I remember vividly the blue, empty sky with all flights grounded as I returned home and listened to Aaron Brown try to make sense of it all during what was his first day on-air at CNN. A report prepared by the Fordham Law School Stein Center for Law and Ethics in collaboration with the Association of the Bar of the City of New York and the National Association for Law Placement Foundation for Law Career Research and Education compiled information about how lawyers responded to the tragedy. According to that report: “More than 4,000 individuals and families who were affected by the disaster were represented on a pro bono basis by volunteer lawyers. Approximately 3,000 lawyers received 9/11 training through the City Bar and in-house law firm programs using City Bar resources and more than 2,800 lawyers registered on the ProBono.net 9/11 website to gain information and resources.” Read and reflect more here.
Now, onto this week’s roundup.
Highlights from Last Week - Top Five Seven(!) Headlines
Once again, this past week was crammed full of headlines about lawyers, judges, and ethics, so much so that I couldn’t limit our highlights to five. So you get seven in this roundup…will we be at a top ten next week?!?
#1 Eastman Takes Stand. I Zoomed-in again to watch parts of the ongoing John Eastman discipline hearing before the California State Bar. On cross examination, he conceded that the U.S. Supreme Court would not have adopted his theory about election vote counts, but still argued “I was just giving legal advice.” His defense continued over the week, and the hearing is scheduled to resume on September 13.
#2 Ethics Complaint Filed Against Montana Attorney General Over Dispute with Supreme Court. From the Montana Free Press (which does an excellent job explaining a very complicated situation): “Montana’s attorney ethics office earlier this week filed a formal complaint against Montana Attorney General Austin Knudsen, alleging across 41 counts that Knudsen and his attorneys violated the state’s rules of professional conduct during litigation over legislative subpoena powers. The complaint is dense and lengthy, and requires some understanding of both the rather arcane system for disciplining attorneys accused of professional misconduct and of a two-year-old lawsuit. But the gist is this: Knudsen and his attorneys within the Montana Department of Justice are accused of undermining public confidence in the judicial system with their communications to and about the Montana Supreme Court during a lengthy separation-of-powers conflict.” (Friendly reminder that this is the second state attorney general to have a formal ethics complaint filed against them in recent days - last week’s roundup covered the Texas complaint against Ken Paxton.)
#3 Wisconsin Justice May Be Impeached Before Ever Presiding. This arguably should have been among my top five headlines for the past few weeks. Justice Janet Protasiewicz was elected “by a landslide” in April to the Wisconsin Supreme Court, shifting the balance to liberal. As the New Yorker reports, partisan gerrymandering was at the heart of her election campaign:
She called the state’s district maps “rigged.” “They do not reflect people in this state,” she said. “I can’t tell you what I would do on a particular case, but I can tell you my values. And the maps are wrong.” She later said that she would “enjoy taking a fresh look at the gerrymandering question.” … Her comments enraged Republicans, who are now threatening to impeach Protasiewicz if she does not recuse herself from two lawsuits challenging the maps.
The New Yorker’s coverage will give you the background you need and also fill you in on the latest.
#4 ABA Model Rule 8.4(g) on Harassment and Discrimination Rarely Enforced. A study from Law360 released last week revealed that during “the seven years since the American Bar Association added a section to its model rules of professional conduct prohibiting lawyers from engaging in what they ‘[know] or reasonably should know is harassment or discrimination,’ the new provision has drawn culture war controversy” and gone essentially unenforced. (Recall that last week’s roundup covered the Third Circuit’s decision upholding Pennsylvania’s version of the rule.) The study examined “public disciplinary records in the states that revised their rules with 8.4(g) in mind — Vermont, New York, New Mexico, New Hampshire, Missouri, Massachusetts, Maine, Connecticut, Alaska, California, Hawaii and Colorado.” Of the “more than 3,000 cases” reviewed “only five instances.” Read more here.
#5 Oregon Supreme Court Considers New Path to Law License. From the Courthouse News Service: “The Oregon Supreme Court held a meeting on Thursday to consider an attorney licensing pathway through the Oregon State Board of Bar Examiners that would provide law graduates with an alternative to taking the state’s bar exam. The Supervised Practice Portfolio Examination would require law graduates to complete 675 hours of supervised legal work and submit a portfolio that would convey a participant’s competency to practice law under the same grading guidelines set forth by bar examiners.”
#6 No More “Fairness and Diversity” Courses in Judicial Ethics Training. As reported by the South Florida Sun Sentinel: “The Florida Supreme Court on Thursday kept in place a decision to delete part of a rule that allowed judges to take courses in ‘fairness and diversity’ to meet continuing-education requirements. Justices in February approved the change but then accepted comments about the decision. In a 5-1 order Thursday, the court said it had considered comments and determined that ‘no further amendments to the rule are warranted at this time.’”
#7 Lack of Diversity in the Judiciary. According to a Bloomberg Law report released last week, numerous all-white benches persist in U.S. district courts. Among the findings: “Twenty-five districts across the U.S. have never had a non-white judge. Almost half are districts that serve their entire state.”
The state courts aren't doing well on diversity, either. The Center for Public Integrity also released a report last week concluding that the “racial and ethnic makeup of state high court justices doesn’t match the nation’s. And the gap in representation has gotten worse.” The report is based upon data collected by the Brennan Center. (For more about the Brennan Center’s work, see last week’s roundup.) Among the assessments: “In 18 states, high courts had all-white benches,” as of May 2023. I was also surprised to learn that in “South Carolina, none of the five supreme court justices are women. It’s the only such court in the nation without a female justice.” (Meanwhile, as noted in last week’s roundup, North Carolina Supreme Court Justice Anita Earls sued the state’s judicial standards commission after they opened an investigation into her public comments about the lack of diversity in the North Carolina court system.)
Recommended Reading — Recent Scholarship
This week’s recommendation couldn’t be more timely given the continuous news about the lawyers indicted with the former president.
Imposing Lawyer Sanctions in a Post-January 6 World by Alex Long, University of Tennessee College of Law, Georgetown Journal of Legal Ethics. From the abstract:
As was the case with the Watergate scandal fifty years ago, the number of lawyers involved in the efforts to overturn the 2020 election results has raised questions about the state of ethics within the legal profession. So far, the profession’s response to the crisis has been to rely on the professional disciplinary system to address the alleged misconduct of the lawyers involved. This decision raises a question as to whether the collection of state professional disciplinary systems are up to the task. The conduct of Jeffrey Clark, the DOJ lawyer who sought to convince state officials to convene special legislative sessions to investigate supposed widespread voter fraud, raises particular concerns related to the disciplinary process as applied to government lawyers. The events surrounding the 2020 election and the January 6 attack on the Capitol provide the legal profession with an opportunity to take a fresh look at the Standards for Imposing Lawyer Sanctions and address any existing shortcomings. This article identifies some of those shortcomings and uses the case of Jeffrey Clark to highlight some of the particular shortcomings as the standards apply to misconduct on the part of government lawyers.
Lawyer(s) of the Week — Senator Sheldon Whitehouse
In a rare move, Senator Sheldon Whitehouse sent a letter last week to Chief Justice John Roberts “to lodge an ethics complaint against Supreme Court Justice Samuel Alito for violating several canons of judicial ethics.” As I told Law360, this “highly unusual” action "strikes at the heart of the debate about separation of powers." Read the full article here. While the Supreme Court has no official process for reporting ethics violations, Whitehouse has created an informal one with this action, which makes him our lawyer of the week. (In addition to being a senator, Whitehouse is a lawyer who served as Rhode Island’s attorney general from 1999-2003 when he was elected to the senate.) So far, no response from the Chief.
Judge(s) of the Week — Justice Brett Kavanaugh
At the risk of being too obvious, our judge of the week is Justice Brett Kavanaugh, the latest to weigh in publicly about whether the Supreme Court will adopt an ethics code. He promised “concrete steps soon” at a judicial conference for the Sixth Circuit in Ohio on Thursday. Recall that Justice Amy Coney Barrett appeared here last week for remarks at a similar event for the Seventh Circuit in Lake Geneva, Wisconsin. And their colleagues Justice Samuel Alito and Justice Elena Kagan were awarded “judge(s) of the week” in a past edition of the roundup for their public commentary about the Court’s (lack of) ethics. Will the others weigh in soon too?
This Week in Ethics History
September 15, 1963. Four young girls lost their lives in the 16th Street Baptist Church bombing, carried out by the Ku Klux Klan. More than a decade passed before the first prosecution occurred, convicting Robert Chambliss in 1977. Decades later Thomas Blanton and Bobby Cherry were prosecuted and convicted in 2001 and 2002, respectively. Donald Cochran, the prosecutor who convicted Cherry, wrote about the process, including the ethics surrounding the decision to prosecute almost 40 years after the bombing, in this Michigan Journal of Race and the Law article, “The Ghosts of Alabama.”
September 15, 2008. Lehman Brothers filed for Chapter 11 bankruptcy, triggering the largest bankruptcy filing in the history of the United States. The lawyers involved were entangled in a range of ethics and professional responsibility issues. Among the numerous articles on ethics written about the bankruptcy and its aftermath, these offer important insights: Garrick Apollon’s “Chief Loophole Officer or Chief Legal Officer: Inside Lehman Brothers—A Film Case Study about Corporate and Legal Ethics,” Milan Markovic’s “The Sophisticates: Conflicted Representation and the Lehman Bankruptcy,” and “Consequential Responsibility for Client Wrongs: Lehman Brothers and the Regulation of the Legal Profession” from David Kershaw and Richard Moorhead.
September 17, 1787. Delegates to the Constitutional Convention signed the Constitution in Philadelphia on this date, now celebrated as “Constitution Day.” We don’t often think about legal ethics being grounded in the Constitution, but they are in many ways. For example, the First Amendment protects the legal advice given by lawyers for the NAACP about civil rights and the ability of lawyers to advertise about their services. (For more on what the First Amendment protects—and doesn’t— see my article “Attorney Advice and the First Amendment.”) The Sixth Amendment provides a right to counsel for criminal defendants and protects against ineffective assistance of counsel. (For more on the Sixth Amendment, see Richard Klein’s article “The Constitutionalizing of Ineffective Assistance of Counsel.”)
Accountability in Our Democracy
This part of the roundup focuses on the legal profession’s accountability in our democracy. Three weeks ago we explored ways lawyers can be held accountable through the discipline system and malpractice claims. Two weeks ago we examined an issue that will undoubtedly surface repeatedly as we follow the criminal trials and discipline hearings for the indicted lawyers and others involved in the 2020 election fraud cases—the First Amendment and lies told by lawyers. Last week’s focus was on non-governmental organizations with a mission to reform lawyer and judicial ethics.
This week we take up an issue ripped from the headlines above, literally. Can Congress hold the U.S. Supreme Court accountable? The debate about Congress’s authority to mandate ethics reform for the Court reached a whole new level when Senator Whitehouse sent his letter to Chief Justice Roberts, as noted above.
There’s no question Congress can pass laws to address conflicts of interest, financial or gift disclosures, and related ethics issues. In fact, after I testified before the House Judiciary Committee about reforms to strengthen financial disclosures, Congress passed The Courthouse Ethics and Transparency Act in 2022. The law imposes tougher disclosure requirements on U.S. Supreme Court justices and federal judges for their financial holdings and stock trades.
The only question is whether a sufficient number of Congress members will set aside partisanship to pass ethics legislation for the Supreme Court.
Legal Ethics in Pop Culture
Ok so not *exactly* legal ethics but sort of…and I haven’t been able to get this out of my mind since reading it so I must share it with you. As former executive director of the NAACP and now Howard Law School professor Sherrilyn Ifill posted on X, an essay published in the New Yorker by a California inmate about listening to Taylor Swift is an emotional must-read.
Both the essay and Ifill’s post went viral this past week. Whatever your thoughts about Taylor Swift, I recommend taking a few minutes to read the New Yorker piece, as it shows us how music can intersect with the legal justice system, and how music can connect and uplift us all in the most unexpected ways. (I’ll confess, I am a Swiftie. My daughter and I were lucky to join The Eras Tour more than once this summer!)
Back in 2011, I wrote an article called “Why the Law Needs Music: Revisiting NAACP v. Button Through the Songs of Bob Dylan” as part of a symposium hosted by the Fordham Urban Law Journal. In it, I discussed how music advanced the civil rights movement in ways that law alone could not, and how music sometimes can redress wrongs and injustices when law is insufficient. I focused on Dylan’s songs from 1963, the same year the U.S. Supreme Court decided NAACP v. Button, striking down a Virginia law that prevented the NAACP of advising individuals about their civil rights and the same year, as noted in the This Week in Ethics History section above, of the 16th Street church bombing. Dylan’s songs challenged the establishment for turning its head, refusing to see the consequences when law goes unapplied or unenforced.
The law needs music. Are there songs more directly tied to legal ethics? If so, I’d love to know. Send me your ideas at legalethics@substack.com
Get Hired
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Upcoming Ethics Events & Other Announcements
September 11 — Ken Paxton Impeachment Trial. The impeachment proceedings for the Texas attorney general continue September 11. More information here.
September 12 — Cybersecurity, Privacy and Data Protection (Ethics): Essentials for Lawyers, Baker Hostetler — virtual. A free, one-hour panel discussion will cover ethical obligations and professional responsibilities regarding data protection, protecting confidential data, supervising others with access to confidential data, and inadvertent or unauthorized disclosures of confidential information. (CLE ethics credit available.) Register here.
September 13 — John Eastman California State Bar Hearing. Members of the public are permitted to watch the proceedings live, which are set to resume on September 13. The link to watch is 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.
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
“Never be so polite, you forget your power. Never wield such power, you forget to be polite.” — Taylor Swift, “marjorie”
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