Legal Ethics Roundup No. 3 - SCOTUS v Congress, NJ Expands Ethics Office, ChatGPT Applies to Law School, #MeToo Reckoning for Law Prof Hiring & More (08.14.23)
A Monday morning review of all things related to legal and judicial ethics.
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Coming Soon! Accountability in Our Democracy
Starting next Monday, you’ll find a new weekly briefing on the legal profession’s accountability in our democracy as a regular feature. We’ll 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.
For now, let’s move on to the weekly roundup…
Highlights from Last Week - Top Five Headlines
#1 The Saga of SCOTUS v. Congress Continues. On August 11, members of Congress Jamie Raskin, Alexandria Ocasio-Cortez, Jerry Nadler, Hank Johnson, and Ted Lieu sent a letter to the Department of Justice urging Attorney General Merrick Garland to investigate Supreme Court Justice Clarence Thomas for failing to disclose significant gifts he received. This came on the heels of additional reporting by ProPublica about the justice’s luxury travel: “At least 38 destination vacations, including a previously unreported voyage on a yacht around the Bahamas; 26 private jet flights, plus an additional eight by helicopter; a dozen VIP passes to professional and college sporting events, typically perched in the skybox; two stays at luxury resorts in Florida and Jamaica; and one standing invitation to an uber-exclusive golf club overlooking the Atlantic coast.” All of this led Alexandra Petri to declare in a Washington Post op-ed: “The Supreme Court justice lifestyle is for me!”
#2 Discipline Delay Over Indictment? Co-conspirator #2 in the indictment of the former president, identified in last week’s Legal Ethics roundup as John Eastman, asked the State Bar of California to pause his ongoing disciplinary trial until the federal criminal investigation is resolved. Prosecutors opposed the request, and it remains unclear what Judge Yvette Roland will do. I watched parts of the state bar trial earlier this summer, which was recessed and supposed to resume late August. Greg Jacob, the lawyer who was with Vice President Mike Pence during the January 6 insurrection and counseled against Eastman’s theories, delivered stunning testimony, at one point stating: “I was offended by my profession. By the advice I had seen given and what resulted therefrom.”
#3 NJ Expands Office of Attorney Ethics. The New Jersey Supreme Court plans to expand the number of lawyers working in the Office of Attorney Ethics by six. (Currently 17 of the 68 employees are lawyers.) According to a notice posted by the administrative director of the courts:
After a period of study, the Court has determined to increase staffing at the Office of Attorney Ethics in measured ways to better protect the public, preserve the integrity of the bar, and support the work of its invaluable, 900-member volunteer corps. … The Court made clear that the addition of staff is a measure to alleviate unnecessary delays; it is not intended as a mechanism to increase the number of investigations or random audits.
This investment by the NJ Supreme Court is notable, especially in comparison to a decision earlier this summer by the Arkansas Supreme Court to close its Office of Ethics Counsel, a one-lawyer office where attorneys could receive ethical guidance. I wonder whether either is the sign of a trend in the expansion or contraction of state funding for attorney ethics, and I will be keeping an eye out. In the meantime, I’ll be sure to include the New Jersey job postings under “Get Hired” in a future Legal Ethics roundup when released. (See below for this week’s opportunities.)
#4 Chat-GPT Applies to Law School. The Sandra Day O’Connor College of Law at the University of Arizona announced that it will be the first law school to explicitly allow applicants to use generative AI tools, effective August 10. According to Dean Stacy Leeds, this “levels the playing field.” She explained:
Many prospective law students hire third-party consultants to provide one-on-one coaching, including helping them with preliminary drafting, editing, and refining application materials. Generative AI offers additional tools as law school application aides. As part of our admissions rollout, we will include information to educate prospective students on AI’s benefits–and its potential pitfalls. In past admissions cycles, we asked applicants to disclose if they used third-party consultants before submitting their materials. We now will ask for similar disclosure for use of AI.
This move stands in contrast to some judges who recently limited or sanctioned the reliance upon AI in legal briefs and pleadings. The reaction of law schools to generative AI has been inconsistent, often leaving it up to individual “professors to set rules.” Some college professors are even returning to oral or handwritten assessments. (I used ChatGPT while teaching this summer, sort of. One of the essay questions on my Professional Responsibility exam provided students an answer generated by ChatGPT to an issue-spotter-type question, and required them to identify what ChatGPT got correct and, importantly, what it got wrong. I’m hoping that this exercise helped them see the risks of relying solely on generative AI!) Does all of this leave your head spinning ? If so, check out the post at the end of the roundup under “Upcoming Events/Announcements” to learn more about navigating generative AI in the legal profession.
#5 Time for a #MeToo Reckoning in Law School Hiring. An exchange on X/Twitter between law professors Christa Laser and Maybell Romero last week brought up my own disturbing memories of similar types of unwanted advances made under the pretense of hiring and career advice when I was a junior professor.
It seems to me that those of us who care about the ethics of the legal profession have a special obligation to call out these bad behaviors and push for reform. I’ve written about #MeToo issues in judicial clerkship hiring and testified before the federal judiciary.
But I haven’t similarly spoken out about these issues in the context of the legal academy, until now. Also this past week, Aliza Shatzman penned an op-ed “Fear of Retaliation Silences Law Clerks—Employers Should Speak Up” calling for employers to empower “new attorneys to seek judicial accountability” to “ensure that judges aren’t just good jurists, but also good managers” and to “send a message that misconduct will no longer be tolerated in the profession.” The legal academy should similarly empower new professors and our students. Shatzman is the executive director of the Legal Accountability Project, “a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not.” Professors Laser and Romero remind us that we need a similar resource, and reckoning, in the legal academy.
Recommended Reading — Recent Scholarship
All three selections for this week’s recommended reading hit close to home for me. The first questions whether legal ethics scholars have guts—I’d like to think so! Indeed, the article reflects why I’m on the board of The 65 Project, a bipartisan organization filing disciplinary complaints about lawyers who lied to courts in the election fraud cases, among other efforts. The second examines so-called “lawfluencers.” No TikTok for me, thank you, though I do admire scholars like Leah Litman who are using it to educate. Her Strict Scrutiny TikTok account has an incredible 14,600 followers! The third addresses the needs of low-income individuals in hybrid courts, a topic covered in my forthcoming book Law Democratized: A Blueprint for Solving the Justice Crisis, which hits the shelves early next year.
Can You Be a Legal Ethics Scholar and Have Guts? by Cynthia Godsoe, Brooklyn Law; Abbe Smith, Georgetown University; and Ellen Yaroshefsky, Hofstra University. From the abstract:
Recent efforts to hold lawyers accountable for their actions—including lawyers who sought to overturn the 2020 Presidential election based on false evidence, and New York City prosecutors who have committed serious misconduct—failed to draw a significant number of legal ethics scholars. The authors of this Essay are troubled by this. … This Essay proceeds as follows: Part I explains what we mean by having “guts.” Part II acknowledges our debt to Monroe Freedman and Deborah Rhode, two scholars who were fully engaged in legal ethics in the real world. Part III discusses why filing disciplinary complaints under the Model Rules of Professional Conduct is a sound approach to holding lawyers accountable, even lawyers engaged in politics. Part IV recounts the prosecutorial misconduct project to which it was difficult to recruit legal ethics scholars. Part V identifies some factors we believe underlie our colleagues’ reluctance to become engaged in these sorts of efforts. Part VI suggests a path forward.
Lawfluencers: Legal Professionalism on TikTok and YouTube by Tony Song and Justine Rogers, University of New South Wales. The article’s opening paragraph captures all too well the authors’ concept of “lawfluencers.” Take a look:
A man, wearing a glittering green tuxedo and a purple and yellow floral tie, dances to the camera, lip-syncing a Taylor Swift song. Raising his hands to the camera to show off chunky diamond rings, he twirls, steps back, then waves goodbye to the viewer. At 12-seconds long, this video was posted by U.S. lawyer Kevin Kennedy, on his TikTok page (@kennedylawfirm). On the post are the hashtags: #kevsgotyoucovered #lawyer #dance #bejeweled #shimmer #glitter #taylorswift #fyp #foryou.1 This video attracted 30,900 ‘likes’ and 461 comments on TikTok, the social media platform that allows users to create and share short-form (15 second to 10 minute) videos.
And from the abstract:
This article investigates the rise of lawyer-influencers or ‘lawfluencers’ and what their arrival means for legal professionalism. In today’s attention economy, ‘influencers’ are now central players. … Lawfluencers are part of a rising crop of – underexamined – ‘knowledge influencers’; professionals who are sharing their expertise and daily lives with global audiences. … Our article explains what lawfluencing is, focusing on TikTok and YouTube as the two most prominent video-based social media platforms. … Lawfluencing might be offering greater access to justice for the public, and new outlets for creativity and career progression for lawyers, but this activity is occurring on the platforms of Big Tech, subject to their commercial imperatives and the sovereignty of the algorithm. This article outlines the ethics risks influencing poses to clients and lawyers, and the possible challenges to the legitimacy of the legal profession and the legal system.
Accessing Justice in Hybrid Courts: Addressing the Needs of Low-Income Litigants in Blended In-Person and Virtual Proceedings, by Katherine L.W. Norton, Duquesne University. From the abstract:
The COVID-19 pandemic forced courts across the country to close their doors to in-person proceedings. Courts had to quickly adopt remote technologies that they ignored for years to keep courts operational. … Lawyers and judges have been able to quickly adopt their practices to utilize these new hybrid court systems. Yet, eighty to ninety percent of cases have at least one unrepresented party, often of low-income. Low-income unrepresented litigants make up the lion’s share of individuals utilizing the civil legal system, and they seem to have been left out of the equation as the hybrid court models have been developed. … Courts need to take a step back and carefully consider how to evolve their hybrid court models using information gathered from the prepandemic models, the current models, and the benefits and difficulties that have been realized from these models. Hybrid court models that are consistent, with a well explained process, combined with an option to opt-out of the technological components when they create barriers, as well as accessible locations with the available technology and assistance necessary can assure that low-income litigants are not barred from the “new” courthouse doors.
Lawyer(s) of the Week
ABA President Deborah Enix-Ross passed the gavel to Mary L. Smith, making her the first female Native American president of the American Bar Association. Among Enix-Ross’s many accomplishments during her term, she created the Task Force on Law, Society, and the Judiciary, which released its report last week. (More on that below under the “Ethics Reform Watch.”) Smith announced two new task forces as part of her presidency over the next year. First, the Task Force for American Democracy will “consider and propose solutions for educating our citizens on the importance of an inclusive, strong and enduring democracy and help to provide bulwarks to bolster our democracy as conceived.” Retired Judge J. Michael Luttig and former Secretary of Homeland Security Jeh Charles Johnson will serve as co-chairs. Second, a task force on artificial intelligence will make recommendations on how AI may impact “the practice of law, access to justice, and laws and regulations.” Their service and commitment to improving the ethics of the legal profession in our democracy make Enix-Ross and Smith our lawyers of the week.
Judge(s) of the Week
This week’s award goes to Judge Tanya Chutkan as she presides over the former president’s indictment. On Friday, she issued a protective order limiting the use and disclosure of "sensitive" material moving forward, imposing a narrower set of restrictions than what was requested by the prosecution, who wanted all evidence kept under wraps. This marks the beginning of what likely will be fierce debate about the lines drawn regarding what constitutes free speech under the First Amendment, both for the former president and also for the lawyers involved, who mush comply with local court rules in DC governing public statements about the case. These rules prohibit the lawyers from making comments about “the identity, testimony, or credibility of prospective witnesses,” and “any opinion as to the accused’s guilt or innocence or as to the merits of the case or the evidence in the case."
This Week in Ethics History
August 18, 1920. The 19th Amendment was ratified: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.” While not explicitly an “ethics” moment, this was a concrete step forward in expanding suffrage for many—but not all—women. It also opened the judicial bench to women. Florence Allen, a leader who helped secure suffrage in Ohio, then campaigned across the state asking women for their votes and they delivered. She was elected to the Ohio Supreme Court in 1922, the first female high court justice in any state, and appointed as the first female Article III federal appeals judge in 1934. (You can learn more about her in my book Shortlisted: Women in the Shadows of the Supreme Court.)
August 17, 1998. The first sitting president to testify before a grand jury, Bill Clinton gave “evasive and misleading answers.” This eventually led the Arkansas Supreme Court nearly three years later to suspend his law license for five years and levy a $25,000 fine. He also voluntarily surrendered his license to practice before the U.S. Supreme Court, rather than face disbarment there.
Ethics Reform Watch
On August 7, the American Psychological Association (APA) recommended the removal of mental health questions on applications to practice law. While some state bars discarded these sorts of inquiries in recent years, 37 states and DC still include at least one question on their mandatory character and fitness questionnaire referencing mental health status. According to the APA, studies “reveal that there is no connection between bar application questions about mental health and attorney misconduct and that such questions have not been empirically shown to work as a successful screening tool for who can and cannot practice law in a competent manner.” The APA plans to work with the ABA and state bars to implement reform.
On August 8, the ABA House of Delegates, a policy-making body with nearly 600 members, adopted changes to Model Rule 1.16 governing the termination of the lawyer-client relationship. The revised rule prohibits a lawyer from representing a client who “seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud,” and requires the lawyer, throughout the representation, “to make further inquiry and assessment” depending upon “the facts and circumstances relating to the representation.”
Two different organizations issued reports calling for the U.S. Supreme Court to adopt a code of ethics. The ABA Task Force on Law, Society, and the Judiciary, chaired by ABA Past-President Linda Klein, published its report on August 4 recommending both an ethics code for the Court and greater transparency about recusals, among other proposals. Citizens for Responsibility & Ethics in Washington (CREW) posted a report on August 9 authored by Judge Jeremy Fogel and CREW President Noah Bookbinder, Building Public Confidence: How the Supreme Court Can Demonstrate its Commitment to the Highest Ethical Standards.
In Memoriam
Judge Rosemary Pooler passed away on August 10. She was appointed by President Bill Clinton to the U.S. Court of Appeals for the Second Circuit in 1998 after first serving for four years on the U.S. District Court for the Northern District of New York and on a New York state court prior to that. An interview from the Portia Project offers fascinating and inspiring insights from her career. As Judge Pooler put it: “I was a pioneer in so many positions, as a female at a time when it wasn't such a good idea to be in public, run for Congress, and do that stuff. You have to have tough skin.”
Poole authored a 2015 decision that could play a role in future debates over whether increasingly-sophisticated AI is deemed to be engaged in law practice. The case involved an attorney who claimed he was not engaged in the practice of law when conducting document review (and thus entitled to overtime pay under the Fair Labor Standards Act) because the parameters of his review allowed for no independent judgment. Pooler agreed, reversing the decision below, and holding that “an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.” Read the full opinion in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP here. A Yale Journal of Law and Technology article by Michael Simon, Alvin F. Lindsay, Loly Sosa, and Paige Comparato explains how the decision may be applied in the future:
The broader implications of this decision are threefold: (1) as machines evolve, they will encroach on and limit the tasks considered to be the “practice of law;” (2) mechanistic tasks removed from the “practice of law” may no longer be regulated by professional rules governing the legal field; and (3) to survive the rise of technology in the legal field, lawyers will need to adapt to a new “practice of law” in which they will act as innovators, purveyors of judgment and wisdom, and guardians of fairness, impartiality, and accountability within the law.
Read the rest of the article here. And read more from Judge Pooler in “Wisdom for the Week,” below.
Get Hired
Assistant General Counsel. Clark Hill is looking for a compliance and risk management attorney whose primary responsibilities will include: (1) serving as subject matter expert on conflicts rules, ethics opinions, and regulatory developments; (2) advising on conflicts; and (3) assisting firm management in developing strategies for changes to firm rules and policies. Based in Detroit, Dallas, or Pittsburg. Application info and more details here.
Ethics Attorney. The U.S. Central Intelligence Agency is hiring an attorney to give ethics advice to Agency personnel, review financial disclosure forms, conduct ethics training, and consult with the Office of Government Ethics. Based in Washington DC. Application info and more details here.
Professional Responsibility Professor. California Western School of Law is seeking lateral candidates to teach professional responsibility and direct their STEPPS Program, which integrates the teaching of professional responsibility with an experiential component. Based in downtown San Diego, “literally overlooking the Pacific Ocean,” per the job posting. Application info and more details here.
Upcoming Ethics Events & Other Announcements
August 23 & September 1 — Free Ethics Training for CA Lawyers on Rule 8.3 Mandatory Reporting. As of August 1, 2023, all California lawyers must comply with Rule of Professional Conduct 8.3, which requires reporting credible evidence of another lawyer engaging in certain conduct. The State Bar is providing a free continuing legal education course about the new rule. Learn more and register here.
September 15 — Call for Papers Deadline. The Association of American Law Schools Professional Responsibility Section invites papers for its program "2024 New Voices Workshop." Those selected will present at the January 2024 annual meeting in DC. There is no formal requirement as to the form or length of proposals. Send them to Ben Edwards (benjamin.edwards@unlv.edu) and include “Submission – AALS PR New Voices Program 2024" in the email title.
Learn About Generative AI for the Legal Profession. A new online course launched by Josh Kubicki promises to put participants “in the top 1% of ChatGTP/GPT-4 users in the legal market … all while being mindful of security, privacy, and ethical risks.” A caveat—I haven’t yet explored the course myself, but I’ve long been a fan of Kubicki’s work. (Don’t just take my word for it. Check out what Fast Company had to say about his teaching when he won their 2022 Innovation by Design Award.) And for the judges reading this newsletter, I have especially good news — he’s offering the course FREE to all judges. More info here.
Wisdom for the Week
“Don't take me on if you don't want all the results.” — Judge Rosemary Pooler, as interviewed by M.C. Sungaila
Keep in Touch
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