Legal Ethics Roundup No. 5 - Lawyer Mug Shots, Duty of Competence Includes Well-Being, Paxton May Testify, Diversity in U.S. and Australia, Eastman Discipline Trial Resumes & More (08.28.23)
Lawyer Mug Shots, Duty of Competence Includes Well-Being, Paxton May Testify, Diversity in U.S. and Australia, Eastman Discipline Trial Resumes & More
Welcome
Thank you for being here! More than 325 subscribed and 4,100 visited in the first three 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. (Subscribers are from 36 states and 13 countries!) I promise to broaden the horizons of this newsletter to your borders and shores with a new internationally-focused feature soon. In the meantime, one of this week’s top five headlines comes from abroad.
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.
Greetings from Lake Geneva, Wisconsin, where I’m speaking at the Seventh Circuit Judicial Conference on Tuesday morning about my book Shortlisted: Women in the Shadows of the Supreme Court, in conversation with Judge Diane Wood and my co-author Hannah Johnson drawing from an interview the three of us did earlier this year for Duke Law’s Judicature magazine. I spent four summers on Lake Geneva working at a camp during college, so the town is filled with memories. Here’s a view of the lake!
Highlights from Last Week - Top Five Headlines
#1 Lawyers in Mug Shots. We knew it was coming, but it was still shocking to see. The eight lawyers indicted with the former president over election fraud all turned themselves in for booking at the Fulton County jail last week. See who smiled and who didn’t here. Want to know more about the lawyers? Last week’s roundup covered them briefly, and this bonus content installment gives more details.
#2 Michigan Task Force Proposes Well-Being as Lawyer Competence. A special task force convened by the Michigan Supreme Court and the State Bar of Michigan recommended in a report issued last week that Michigan Rule of Professional Conduct 1.1, which governs competence, be amended to include well-being as a component of lawyer competence. You can read more about this proposal and the full report below under Ethics Reform Watch.
#3 Will AG Ken Paxton Testify? Reporting from the Texas Tribune suggests that Texas Attorney General Ken Paxton must testify during the Texas Senate impeachment trial set to begin on September 5, though he could choose to invoke the Fifth Amendment. Paxton was impeached by the Texas House of Representatives in May, and he’s been under indictment since 2015 for state securities fraud felony charges.
#4 ABA President Calls for Diversity; First Indigenous Woman Sworn-In as Justice on an Australian Supreme Court. On Friday, American Bar Association President Mary Smith, the first female Native American elected to this role, issued a statement noting that the ABA “is deeply troubled by the recent efforts of some elected officials and advocacy groups to attack diversity programs at law firms.” The day before, on the other side of the globe, Louise Taylor was formally sworn-in as a justice on the Supreme Court of the Australian Capital Territory, the first Aboriginal woman to sit on a supreme court in Australia. (You might recall that Smith was our lawyer of the week in a recent roundup; perhaps Taylor will soon make judge of the week!)
#5 Eastman Bar Discipline Trial Resumes. California State Bar Court Judge Yvette Roland gaveled in the discipline proceedings against John Eastman on Thursday morning after postponing them for a couple of days to give him time to get his mug shot taken in Fulton County. She denied his motion to abate the discipline trial to allow for the criminal case to play out, issuing a 10-page order. I watched the trial live on Thursday, which featured testimony from the State Bar’s expert witness, Matthew Seligman. For more on that, check out the Lawyer(s) of the Week below. (By the way, it’s notable that California is the only state with independent professional judges who exclusively hear matters related to attorney discipline. Five full-time judges sit in Los Angeles and San Francisco, all with the authority to recommend suspension or disbarment of attorneys who commit professional misconduct or are convicted of serious crimes.)
Ethics Reform Watch
Recommendations on Well-Being in the Law from the Michigan Supreme Court and the State Bar of Michigan. A special task force issued a comprehensive report with nearly two dozen recommendations about how to address the legal profession’s high rates of anxiety, depression, and substance use in the legal profession. Several of these proposals directly target lawyer ethics and discipline. One is a proposed amendment to Michigan Rule of Professional Conduct 1.1 to include lawyer well-being as a component of lawyer competence, as mentioned in the Highlights above. A second recommendation promotes incentives, rather than discipline, for lawyers who demonstrate commitment to well-being. A third proposal would provide training to the Attorney Discipline Board and Attorney Grievance Commission staff on lawyer well-being and mental health. The report also recommends that the Michigan Supreme Court establish a permanent Commission on Well-Being in the Law which, to my knowledge, would be the first of its kind in the nation. As someone who has followed and championed the lawyer mindfulness movement led by experts like Jeena Cho (co-author of the book The Anxious Lawyer) and Scott Rogers (founder and director of the Institute for Mindfulness Studies and of the University of Miami School of Law's Mindfulness in Law Program), I commend this Michigan task force’s work and I hope to see other states join the effort.
Recommended Reading — Recent Scholarly Articles
This week’s recommendations are all about prosecutors. The first reviews an important piece arguing that prosecutors should be expected to rectify wrongful convictions as a matter of professional ethics. The second thoughtfully exposes the resistance of prosecutors to embrace reforms to the criminal legal system, calling it “prosecutorial mutiny” and making a compelling case that this resistance is unethical under the ABA Model Rules.
Innocence, Integrity, and Rule Reform by Nora Freeman Engstrom, Stanford Law School, reviewing Bruce Green, Should Prosecutors Be Expected to Rectify Wrongful Convictions?, Texas A&M Law Review. An excerpt:
In Should Prosecutors Be Expected To Rectify Wrongful Convictions?, Bruce Green makes a compelling argument for why the titular question should be answered with a resounding “yes.” To understand what is at stake, it’s best to start with a few statistics:
The National Registry of Exonerations identifies more than 3,000 wrongly convicted individuals who have been exonerated since 1989—likely a tiny fraction of the innocent men and women who have been made to serve time. Black individuals are up to 19 times more likely to be wrongly convicted of certain crimes than their white counterparts. Also chilling, “official misconduct”—most often involving the concealment of exculpatory evidence by prosecutors or their investigators—is present around 40% of the time. ***
Recognizing that (1) even after conviction, some prosecutors do come across solid evidence of defendants’ innocence, and (2) left to their own devices, some prosecutors need a push to do the right thing, in February 2008, the ABA took action. In particular, the ABA’s House of Delegates added two new provisions to Model Rule of Professional Conduct 3.8, the rule that sets forth the “Special Responsibilities of a Prosecutor.” Considered in tandem, these new ethical obligations help to promote post-conviction disclosure. ***
The logic and humanity of 3.8(g) and (h) are undeniable. And it’s a credit to the ABA (and to Professor Bruce Green, who was instrumental in the provisions’ passage) that, fifteen years after Subsections (g) and (h) sailed through the ABA’s House of Delegates, twenty-four states have adopted these provisions in some form.
Yet, in other states, acceptance has stalled, running aground on the shoals of prosecutorial opposition. Most prominently, the U.S. Department of Justice, which did not oppose the ABA’s passage of the provisions, has gone on record urging states to reject them. It is this prosecutorial opposition that motivates, and lies at the heart, of Should Prosecutors Be Expected To Rectify Wrongful Convictions?. In particular, in the piece, which is essentially a reply to the provisions’ critics, Green lays out four arguments frequently voiced in opposition to 3.8(g) and (h). Then, in a methodical and lawyerly fashion, Green proceeds to demolish those arguments.
Read the full review (and download Green’s article) at Jotwell
Prosecutorial Mutiny by Cynthia Godsoe, Brooklyn Law School, and Maybell Romero, Tulane Law School. From the abstract:
Elected progressive prosecutors face resistance on many fronts to their reforms of the overly harsh and racist criminal legal system. One of these forms of resistance is particularly corrosive—internal dissension by line prosecutors. This resistance flummoxes criminal legal system reform and undemocratically interferes with the will of the electorate. This resistance, which we term “prosecutorial mutiny,” is also unethical under the American Bar Association’s Model Rules. Given the pervasiveness of such mutiny alongside other sources of back-lash to criminal system change, we argue that progressive prosecutors are not the panacea to all the criminal legal system’s ills as many have hoped, and that resources should be focused on supporting other sources of change to the system.
Lawyer(s) of the Week - Duncan Carling and Matthew Seligman
Duncan Carling is the California State Bar attorney who leads the team handling the John Eastman trial. Carling has worked for the State Bar for over six years, and prior to that was deputy city attorney for San Francisco. I watched the proceedings, which resumed Thursday, and found his questioning of Matthew Seligman, a lawyer and election law expert, quite interesting. (Among other significant scholarly work, Seligman is co-author with professor Lawrence Lessig of the forthcoming book How to Steal a Presidential Election, to be published by Yale University Press.) Carling took Seligman methodically though questions about the history of our nation’s elections and the electoral vote count in all of them, going back to the founding. When Carling asked Seligman whether there was any historical basis that the president of the senate has authority to reject votes, he declared “no, there is no historical evidence whatsoever supporting the claim.” Seligman had the same reply to questions about historical bias for the president of the senate having authority to decide disputed issues regarding the count of electoral votes or to postpone the electoral count. For their involvement in the Eastman discipline trial, Carling and Seligman are our lawyers of the week.
Judge(s) of the Week - Judge Scott McAfee and Judge Steve Jones
Judge Scott McAfee, Superior Court of Fulton County, is presiding over the indicted eight lawyers along with the former president and others in the election fraud case. He was appointed to the court in February 2023 by Governor Brian Kemp, and is running for a full four-year term. But he’s not the only judge who will be navigating this case. Judge Steve Jones, United States District Court for the Northern District of Georgia, will be ruling upon requests from those indicted to remove their cases to federal court. Last week he rejected efforts to delay arrests in the state criminal case. Their roles in these proceedings make them our judges of the week.
This Week in Ethics History
August 23, 2003. A decade ago, then-Chief Justice of the Alabama Supreme Court Roy Moore was suspended by the Alabama Court of the Judiciary for defying a federal court order requiring him to remove a 5,280 pound monument of the Ten Commandments he installed in the court building. The ethics complaint brought by the Alabama Judicial Inquiry Commission, which ultimately led to his removal, charged him with failure to “observe high standards of conduct” and “respect and comply with the law.” He later returned to the bench, winning the 2012 election, only to be suspended and removed again in 2016 for more violations of the Alabama Canon of Judicial Ethics.
August 24, 1949. Tom Clark was sworn in as a justice of the United States Supreme Court, appointed by President Harry Truman. Clark is perhaps best known for his opinion in a case called Mapp v. Ohio, which ruled that the Fourth Amendment prohibition against unreasonable searches and seizures applies to the states through the Fourteenth Amendment. He also wrote the majority opinion in Heart of Atlanta Motel v. United States, upholding the public accommodations provision of the Civil Rights Act of 1964. Less known, but important for our purposes, are his contributions to legal ethics. After assuming senior status in 1967, Clark led a commission for the American Bar Association to examine the lawyer discipline system. Originally called the Special Committee on Evaluation of Disciplinary Enforcement, it was soon known as the Clark Commission. In 1970, the Clark Commission published a 200-page study criticizing the existing lawyer disciplinary system, finding it understaffed and underfunded, and nonexistent in many states. Among the reforms ushered in, the Clark Commission was responsible for implementing the Multistate Professional Responsibility Exam, a requirement for licensing in most states, and the establishment of bar disciplinary authorities in each state. The ABA also created the Standing Committee on Professional Discipline based upon the Clark Commission’s recommendations.
Accountability in Our Democracy
This part of the roundup focuses on the legal profession’s accountability in our democracy. Last week we explored ways lawyers can be held accountable through the discipline system and malpractice claims. This week I’m exploring a question 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: does the First Amendment protect lies told by lawyers?
The ethics rules governing the practice of law sometimes not only permit lawyer lies, but occasionally require less than candid speech, if not outright lies. For example, bluffing in negotiations is expected (see Model Rule 4.1) and the failure to do so may risk violating the duty of competent representation (see Model Rule 1.1). Lawyers are allowed to argue contrary positions in different jurisdictions at different times for different clients. Lawyers working in an intelligence or national security capacity have been permitted to “act deceitfully” if required for engagement in clandestine activities.
There are limits, however. The Model Rules prohibit a lawyer from “knowingly making a false statement of material fact to a third party” or a “false statement of law or fact” before a judge or knowingly introducing false evidence in court. Similarly, Model Rule 3.1 bars lawyers from bringing frivolous claims in court, and Model Rule 8.4(c) defines actions “involving dishonesty, fraud, deceit or misrepresentation” as professional misconduct. Typically these sorts of punishable lies must occur in the context of representing a client, but not always. For example, as noted in a previous edition of this Legal Ethics roundup, after lying under oath in the Paula Jones litigation, President Bill Clinton’s license was suspended in Arkansas and he surrendered his U.S. Supreme Court license rather than be disbarred there.
In short, the First Amendment does not protect lawyer lies in court proceedings, which is why it is important to pay attention to what lawyers write in legal pleadings or argue to a judge, and not necessarily what they say at press conferences or on television.
But, given the consequences of lies about the 2020 election, should lawyers be able to spread lies on camera that wouldn’t be allowed inside the courthouse? I say no, and you can read more about that in this essay I wrote for the Yale Law Journal.
New this Week - Legal Ethics in Pop Culture
After watching the American Law Institute (ALI) get major air-time in the season finale of the show And Just Like That… this past week, it occurred to me that the Legal Ethics roundup could use a bit of pop culture! (For fans of this Sex and the City sequel, one of the characters Nya Wallace, who is a tenured law professor at Columbia specializing in human rights, learns she was unanimously elected to ALI membership. The episode gives ALI two scenes — both when Nya hears the news in her office and when she goes home to share it with Miranda.) So, beginning with this week’s roundup and continuing in future editions, you’ll find a “Legal Ethics in Pop Culture” segment. Fortunately, federal appeals Judge Jennifer Elrod made this easy for me, because she just published a terrific piece in Law360 about the show Jury Duty, a reality hoax sitcom or what her clerks call a “mockumentary.” Like Elrod, I only recently started watching the show, though it debuted in April. Basically, the show is all actors except for one person who believes he’s been placed on a real jury, and they make him the foreperson. As she notes, the “show is purposefully silly; the fake jurors, lawyers and judges do ridiculous things to see how the incredibly earnest [nonactor] will react.” It offers moments to appreciate ethics rules, and as Elrod concludes, the show also “offers at least one serious lesson. It reminds the audience of the simple yet brilliant design of the right to trial by jury.”
Get Hired
Conflicts Attorney, Crowell & Moring, Washington DC. This position is responsible for daily review and analysis of conflicts and other issues related to firm acceptance of new clients, new matters, and lateral attorneys. More details here.
Legal Counsel - Conflicts, Womble, Bond, Dickinson, any office including Atlanta, Boston, DC, Houston, Nashville, and more. Primary responsibilities include: (1) analysis of conflicts issues in new business and lateral hires; (2) drafting client engagement letters and conflicts waivers; and (3) other ethics and professional responsibility related duties. More details here.
Principal Counsel - Ethics, FINRA, fully remote. Working within the Ethics/Code of Conduct Office, this role “is responsible for creating, interpreting, advising on, monitoring and maintaining various conflicts-of-interest programs at FINRA.” More details here.
Senior Corporate Counsel- Investigations, The J.M. Smucker Co., fully remote. This position supports the company’s “commitment to integrity. ethics, and doing the right thing” by providing guidance and counsel to the VP, Chief Ethics and Compliance Officer, and other senior leaders. More details here.
Upcoming Ethics Events & Other Announcements
September 5 — John Eastman California State Bar Hearing. Members of the public are permitted to watch the proceedings live, which are set to resume on September 5. The link to watch is here.
September 5 — Ken Paxton Impeachment Trial. The impeachment proceedings for the Texas attorney general begin September 5. The public may attend in person, but only with a ticket distributed starting at 7:30AM daily. More information here.
September 8 — Emory Law Annual Symposium on Ethics and Professionalism. The focus for this year’s symposium is Supreme Court legitimacy: stare decisis, democratic institutions, and the shadow docket. The event is being hosted by law professor Tonja Jacobi. More details here.
September 12 — MPRE Registration Deadline. Planning to take the Multistate Professional Responsibility Exam on November 2 or 3? Get registered here.
Missed events and announcements from previous editions of the roundup? Find them all here.
Wisdom for the Week
“Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” — U.S. Supreme Court Justice Tom Clark in Mapp v. Ohio (1961)
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.