Legal Ethics Roundup No. 6 - Judicial Speech & (Lack of) Diversity, Rule 8.4(g) Upheld in 3rd Circuit, ABA on AI & Ethics, SCOTUS Ethics (Again), Paxton Complaint, Judges Can’t Celebrate (09.04.23)
Judicial Free Speech & (Lack of) Diversity, Rule 8.4(g) Upheld in 3rd Circuit, ABA on AI & Ethics, SCOTUS Ethics (Again), Paxton Bar Complaint, Judges Can’t Celebrate?
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Happy Labor Day! This week’s edition of the roundup was written from Mackinac Island, where my husband Wallace and I enjoyed a break from the Texas heat over these last days of summer. I hope you also found time to rest during this weekend holiday and to reflect upon the history of Labor Day, first recognized as a federal holiday in 1894.
Highlights from Last Week - Top Five Six(!) Headlines
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. In an effort to narrow it down, I left quite a few headlines on the cutting room floor, including the latest on federal district court Judge Brantley Starr’s order for religious training as a sanction (find previous roundup coverage here) and a blame-the-lawyers defense apparently emerging in the Sam Bankman-Fried litigation. In no particular order, here are your top six.
#1 Judicial Free Speech and Diversity. After North Carolina Supreme Court Justice Anita Earls made public comments about the lack of diversity in the North Carolina court system, the state’s judicial standards commission opened an investigation into her statements. On August 29, she filed a lawsuit against the state’s judicial standards commission in federal district court for violating her First Amendment right to freedom of speech. Read the full complaint here. (H/T Sarah Morath)
#2 New ABA Task Force on the Law and Artificial Intelligence. The American Bar Association announced an impressive list of lawyers, judges, and experts for a new task force that will, among other things, assess the impact of AI consistent with the Model Rules of Professional Conduct; address the complex and challenging ethical questions surrounding AI that implicate the principles of confidentiality, competence, practice management, and honesty; and explore the impact of AI on the courts and judicial systems.
#3 Third Circuit Upholds Pennsylvania Rule 8.4(g). Reversing the district court, the U.S. Court of Appeals for the Third Circuit upheld the new Pennsylvania Rule of Professional Conduct 8.4(g), which prohibits knowing harassment and discrimination in the practice of law. The case, Greenberg v. Lehocky, involved a pre-enforcement challenge. The plaintiff Zachary Greenberg, a Pennsylvania attorney who regularly gives continuing legal education presentations about First Amendment protections for offensive speech, argued that his presentations could be unconstitutionally sanctioned as harassment or discrimination under the rule because he quotes offensive language from judicial opinions and covers other related topics. A unanimous panel, in an opinion authored by Judge Anthony Scirica, disagreed, finding that the rule does not violate the First Amendment. Read the full opinion here. (H/T Wendy Muchman)
#4 Supreme Court Annual Financial Disclosures. Justices Samuel Alito and Clarence Thomas filed their annual financial disclosures on Thursday, after receiving an extension from the standard May deadline for submissions. (The other seven justices already sent in theirs, which were reported on back in June.) Thomas disclosed additional trips funded by Harlan Crow, adding to the list of luxury travel compiled by ProPublica. Alito disclosed two trips funded by law schools. This four-minute conversation about ethics reform in the wake of these disclosures between Virginia Canter, chief ethics counsel for the Citizens for Responsibility and Ethics in Washington, and NPR's Michel Martin is worth a listen.
#5 Texas State Bar Complaint Against Ken Paxton. Fourteen Texas lawyers, including three former Texas State Bar presidents, filed a complaint asking the State Bar to investigate and potentially take away Ken Paxton’s law license. He is currently suspended from his role as the attorney general of Texas and faces an impeachment trial beginning this week. (For more on that, see the announcements section below.)
#6 Judges Can’t Join the Celebration? May a judge accept an invitation from a for-profit law firm to attend its 50th anniversary celebration, which will take place at the law firm’s offices and include complimentary food and beverages? No, at least not in California, according to a California Supreme Court Committee on Judicial Ethics Opinion issued on August 29.
Recommended Reading — Recent Scholarship
This week’s recommended reading turns the whole concept of lawyer discipline on its head, proposing incentives and rewards for good behavior rather than punishment. The article focuses on reforming the mandatory reporting rule, but another place for more carrots and fewer sticks might be lawyer well-being, as noted in last week’s roundup covering the recommendation out of Michigan to include well-being as part of the duty of competence. Read on and see if you agree.
Reimagining Attorney Regulation by Jon J. Lee, University of Maine School of Law, forthcoming in the Boston College Law Review. From the abstract:
For more than half a century, jurisdictions have relied on threats of disciplinary sanctions—sticks—to try to coerce attorneys to act in an ethical manner. In doing so, they have focused their efforts on establishing minimum standards of practice and sanctioning only those attorneys that fall well short of them. But to craft general rules that apply to all attorneys, they have had to ignore the considerable differences that attorneys face because of their practice settings, years of experience, or individual identities. And at times they have struggled to establish clear standards to guide attorneys regarding their obligations—precisely because the settings in which they arise are so complex. Perhaps no rule better epitomizes the deficiencies in this one-size-fits-all approach than the mandatory reporting rule, which has simultaneously created anxiety among attorneys about their reporting obligations and, with its strictures, engendered widespread noncompliance. …
This Article makes three primary contributions to the discourse on reforming professional lawyer regulation through the lens of the mandatory reporting rule. First, it demonstrates the deficiencies and limitations that have been created by a stick-based system almost exclusively focused on sanctions. Second, it proffers an alternative model—one relying on carrots—and draws upon the rational choice literature to identify criteria for determining which type of incentive to implement. Third, it provides a template for how professional lawyer regulation can be revitalized by incorporating carrots that induce attorneys to strive to ethical heights, rather than relying on sticks that induce attorneys to do just enough to avoid disciplinary action.
Lawyer(s) of the Week - Hilary Gerzhoy & Jonah Perlin
If you haven’t been listening to the podcast How I Lawyer with Jonah Perlin, you should. This is especially true with his latest drop because he featured an interview perfect for the Legal Ethics weekly roundup. Hilary Gerzhoy, a legal ethics and malpractice lawyer at HWG LLP, explains what legal ethics lawyers do and how she made a career out of this specialty. For Perlin bringing us interviews about all sorts of lawyering in his terrific podcast (including this past week’s episode devoted to legal ethics) and for Gerzhoy sharing her own story, they are our lawyers of the week. Listen to their conversation here (43 minutes).
Judge of the Week - Justice Amy Coney Barrett
During remarks at the Seventh Circuit Judicial Conference last week in Lake Geneva, Wisconsin, Justice Amy Coney Barrett weighed in on the ever-evolving controversy about the lack of a formal ethics code for the U.S. Supreme Court, sort of. She wasn’t asked directly about any specific issues, like Justice Samuel Alito’s comment that Congress lacks authority to impose an ethics code or the latest disclosures of luxe travel from Justice Clarence Thomas. But, as reported by several media outlets, including CNN and the Washington Post, she said she would “welcome” public scrutiny of the court. Since her colleagues 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, it seems only fair to pass on the mantel to Barrett this week.
This Week in Ethics History
September 10, 1887. Here’s the masthead for Myra Bradwell’s Chicago Legal News as it appeared 136 years ago this week.
Bradwell founded the publication in 1868, when women were still excluded from the legal profession. She was repeatedly denied a license to practice law despite passing the Illinois bar exam in 1869. The U.S. Supreme Court decision Bradwell v. Illinois (1873) upheld the Illinois Supreme Court’s denial of her license in an 8-1 opinion. Chief Justice Salmon P. Chase was the lone dissent, while Justice Joseph Bradley authored his now-infamous concurrence that the “paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” Bradwell eventually was admitted to the bars of the Illinois Supreme Court in 1890 and the Supreme Court of the United States in 1892, but she never practiced law. Instead, she operated her Chicago Legal News and advocated for women entering the legal profession for the remainder of her life. (While the Legal Ethics weekly roundup hasn’t quite reached the success of the Chicago Legal News, I’d like to think that Bradwell would appreciate my efforts!)
September 10-12, 1965. The Asheville Conference of Law School Deans on Education for Professional Responsibility was convened in cooperation with the American Bar Association and the Association of American Law Schools to discuss legal clinics, law school internships, urban reform projects, and related professional responsibility efforts being implemented in various law schools. At the time, legal ethics and professional responsibility courses were not yet required in law schools.
Accountability in Our Democracy
This part of the roundup focuses on the legal profession’s accountability in our democracy. Two weeks ago we explored ways lawyers can be held accountable through the discipline system and malpractice claims. Last week 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. This week’s focus is on non-governmental organizations with a mission to reform lawyer and judicial ethics.
I’ve been working on an inventory of the groups, beyond state bars and disciplinary authorities, which focus on holding lawyers and judges accountable to their professional obligations. Some of these are free-standing nonprofit organizations and some are housed within academic institutions, typically law schools. Three of these groups were featured in two different legal podcasts this week, both of which are well-worth your time. Over at Original Jurisdiction, David Lat sat down with Gabe Roth of Fix the Court to discuss ethics reform for the U.S. Supreme Court. Listen here (46 minutes). And Strict Scrutiny featured an interview by hosts Leah Litman, Melissa Murray, and Kate Shaw with Brian Fallon from Demand Justice, who also discusses judicial ethics reform efforts during the second half of the podcast. And as a bonus, the first half features an interview by Shaw with Michael Waldman, president and CEO of the Brennan Center for Justice at New York University School of Law, about his new book The Supermajority: How the Supreme Court Divided America. Listen here (1 hour, 15 minutes for the full episode).
By my count, there are at least a dozen other entities similar to Demand Justice and Fix the Court devoted to lawyer and judicial ethics reform. And this doesn’t include centers and institutes housed at educational institutions like the Brennan Center. Other examples from the academy include the Deborah L. Rhode Center on the Legal Profession at Stanford Law School and the Institute for the Advancement of the American Legal System at the University of Denver. These initiatives add another dozen or so to the list. Nearly a decade ago I wrote about the emerging influence of for-profit legal services providers and lawyer ratings/reviews companies on ethics reform—what I called the “commercialization of legal ethics”—in an essay published with the Georgetown Journal of Legal Ethics. While that phenomenon promised to fill long-enduring gaps in access to justice by expanding the availability of new types of legal services providers and the availability of information about how to obtain quality legal assistance, I had serious concerns about consumer protection and public education. Since that time, reform efforts by these nonprofits and academic groups seem to be much better suited to meet the needs of the public. In a future bonus content post, I’ll provide a comprehensive list of these organizations, and offer analysis about their successes to-date and their plans for the future.
Legal Ethics in Pop Culture
Although the television series Suits debuted in 2011, it got a second-life as the most-watched show of the summer in 2023 thanks to Netflix. And it is filled with all sorts of legal ethics issues. As Texas First Court of Appeals Justice Sarah Beth Landau noted over the weekend on X/Twitter, a whole professional responsibility class could be taught with it!
If you haven’t seen Suits, the show opens with the adventures of a character whose photographic memory allows him to fake his way into being hired as an attorney, even though he hasn’t gone to law school or passed a bar exam. And the tangle of ethical complications builds from there. For my fellow legal ethics professors, should you want to take up Justice Landau’s suggestion and incorporate Suits in your teaching, this blog offers a breakdown of episodes and their respective violations of professional conduct rules.
Get Hired
Assistant General Counsel - Ethics & Compliance, Textron — Rhode Island. Serve as Textron’s subject matter expert in anti-corruption, anti-money laundering, conflicts of interest, and related areas. More details here.
Attorney Advisor - Senior Attorney Ethics, Federal Deposit Insurance Corporation — Washington DC. Advise the Ethics and Alternative Dispute Resolution Program Manager in the administration and implementation of the FDIC’s employee ethics program, covering the standards of ethical conduct regulations, criminal conflict of interest statutes, ethics-related policies and procedures and financial disclosure. More details here.
Client Contracts Attorney, King and Spaulding — Atlanta, Austin, Charlotte, Chicago, Denver, Houston, Los Angeles, Miami, NYC, San Francisco, Palo Alto, Washington DC, and more (remote eligible). Responsible for the review of all outside counsel guidelines and other client-drafted engagement terms, non-disclosure agreements, and related matters. Advise on compliance and negotiate with clients. More details here.
Conflicts Staff Attorney, Sidley and Austin — Chicago. Responsible for assisting with the review, identification, and resolution of potential conflicts issues, including all new business and laterals. More details here.
General Attorney Advisor - Ethics Division, U.S. Department of Health and Human Services — Bethesda. Provide legal advice and services to HHS employees on matters relating to federal criminal conflicts of interest statutes, federal and HHS standards of ethical conduct regulations, financial disclosure requirements, and related issues. More details here.
Global Director of Ethics and Compliance, CDW — remote. Reporting to the VP Assistant General Counsel - Ethics & Compliance, this position develops, directs, and promotes the execution of CDW’s ethics and compliance program and provides legal advice on a broad range of regulatory and compliance topics. More details here.
Risk and Compliance Attorney, Wiley Rein — Washington DC. Responsible for conducting research, providing analysis, and implementing policies relating to the firm’s ethical responsibilities in accordance with applicable rules of professional conduct. More details here.
Risk Management Counsel, Thompson Coburn — Chicago, Los Angeles, NYC, St. Louis, or Washington DC (hybrid-remote eligible). Provide guidance to firm attorneys and staff on risk management and loss prevention issues with particular emphasis on the client-intake process, compliance with applicable rules of professional conduct, conflicts checking procedure best practices, and identifying and resolving potential conflicts of interest for new clients and matters. More details here.
Staff Attorney, Pro Bono Counsel, Bodman — Ann Arbor, Detroit, or Troy. Administer the firm’s pro bono program including conflict checks, client-matter code assignments, and scheduling attorneys for pro bono clinics. More details here.
Upcoming Ethics Events & Other Announcements
September 5 — John Eastman California State Bar Hearing Continues. 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 Begins. The impeachment proceedings for the Texas attorney general are scheduled to open September 5. The public may attend in person, but only with a ticket distributed starting at 7:30AM daily. More information here.
September 7 — 2023-24 Annual Law & Ethics Lecture, University of Michigan Law School. Professor Mitchell Berman from the University of Pennsylvania Carey Law School will deliver a talk entitled, “Constitutional Law, the Supreme Court, and the Ethics of Judging.” More information here.
September 14 — Guardians of Generative AI: Upholding Ethics and Law in an Age of Unreliable Output. The Chicago chapter of the Association of Certified E-Discovery Specialists is hosting a lunch and roundtable from 11:30-1:30PM to “engage with real-world scenarios, uncover the ethical complexities, and gain insights into the evolving regulatory framework guiding AI's integration into law.” More information here.
Wisdom for the Week
“Every discipline, every profession, every job, and every calling has a cutting edge. At that cutting edge, lines are drawn. Lawyers and judges are society's ultimate line drawers. On one side of the line, the conduct, action, or inaction is proper; on the other side of the line, it is not.” — Rennard Strickland and Frank T. Read, The Lawyer Myth: A Defense of the American Legal Profession
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Have a magnificent Monday! See you next week.