LER No. 23 - Top Ten Legal Ethics Stories of 2023 (1.01.24)
The Legal Ethics Roundup - your Monday morning tour of all things related to lawyer and judicial ethics.
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Happy New Year and Hello 2024
This week I’m mixing things up again here at the Roundup. To say goodbye to 2023, we’re reviewing the top ten stories of the year in lawyer and judicial ethics. I’ve also included tributes to giants in the fields of lawyer and judicial ethics who passed away in 2023.
Missing the Roundup in its regular form? Don’t worry. It will be back packed full of the latest news, reading recommendations, reforms, job opportunities, historical moments, pop culture references, current events, and whatever else fills my mind in this important field.
Looking for the best books in legal ethics from 2023? Head back to Roundup No. 20 where I feature lots of recommendations.
Want to catch up on the most-read editions of the LER? After the list of top ten stories below, you’ll find links to the five most-read editions of the Legal Ethics Roundup in 2023.
And now, on to the LER top ten!
The Legal Ethics Roundup Top Ten Stories of 2023
Story #1 - SCOTUS Adopts (an Unenforceable) Ethics Code
On November 13, 2023, the US Supreme Court issued a statement announcing its newly-adopted ethics code after much criticism from commentators, ethics scholars, and journalists. It wasn’t entirely surprising. LER readers will recall that I spoke with Ed Pilkington at The Guardian about the opening of the Supreme Court’s 2023 Term, and told him I was “cautiously optimistic.” (Revisit Roundup No. 11 for more on that.) While I appreciate that the justices took this first step, the code itself is “toothless” as I discussed with New York Times reporter Adam Liptak. For more of my concerns, see Bonus Content No. 5. Needless to say, I anticipate more headlines on SCOTUS ethics in 2024. (See, for example, this late December op-ed by Norm Eisen and Joshua Kolb, who predict “Clarence Thomas’ next step will test SCOTUS’ ethics code — and democracy itself.”)
Story #2 - Election Fraud Lawyers - Eight Lawyers Indicted with the Former President; Some Sanctioned/Disbarred
On August 14, 2023, eight lawyers were indicted in Fulton County Superior Court along with the former president and several others. (See Bonus Content No.1 for a list of the lawyers and more details.) As I said at the time, this is a moment of reckoning for the legal profession. So far, only three of the indicted lawyers have pleaded guilty. The first to do so was Kenneth Chesebro, and Sidney Powell quickly followed him, both just days before their trials were set to begin. See Bonus Content No. 4 for more on Powell’s plea deal, and Roundup No. 21 for handwritten apologies from both. Jenna Ellis soon joined them, telling the court: ““If I knew then what I know now, I would have declined to represent Donald Trump in these post-election challenges.”
Several of the indicted lawyers faced sanctions or disbarment, along with other lawyers involved in the election fraud cases who have not been indicted, at least not yet. From Law360 in mid-December: “Trump attorney L. Lin Wood Jr. was disbarred Thursday from practicing before the Colorado federal court, while watchdog groups called for the disbarment of another Trump attorney, Jenna Ellis, following her guilty plea in the Georgia election interference case. Colorado's federal trial court disbarred Wood following a misconduct investigation in Georgia related to his claims of evidence of fraud in the 2020 presidential election. Meanwhile, the States United Democracy Center and Lawyers Defending American Democracy sent a letter to the Colorado Supreme Court on Friday urging Ellis' disbarment through a new disciplinary proceeding in light of her felony guilty plea in the Fulton County, Georgia, election interference case.” John Eastman still has no final outcome about disbarment from his California Bar trial that extended over several months, aired live via Zoom. The final ruling is expected in February. (I covered his trial here at the LER extensively — see Roundup No. 4, Roundup No. 5, Roundup No. 7, Bonus Content No. 2, Roundup No. 13, and Roundup No. 15.) Jeffrey Clark’s disbarment hearing begins January 9, and will be live-streamed on YouTube. As with Story #1, we will undoubtedly see more news on this front in 2024.
Story #3 News from Texas — The Impeachment/Acquittal of AG Ken Paxton; Bankruptcy Judge Resigns Over Romance; Texas Access to Justice Commission Rejects Non-Attorney Ownership Proposal
As a law professor at the University of Houston, I can’t help but pay special attention to ethics headlines out of Texas. So Story #3 is a mashup of Texas-related news.
First, we witnessed the impeachment of Attorney General Ken Paxton followed by his acquittal in the Texas Senate. (See Roundup No. 8.) But, he still faces litigation related to allegations of bribery and corruption. As reported by the Texas Tribune in late December: “Ken Paxton and aides [were] ordered to answer questions under oath in whistleblower case.”
Second, in November David R. Jones, chief bankruptcy judge for the Southern District of Texas, abruptly resigned after his romantic relationship with a bankruptcy attorney became public. More than 3,000 cases had to be reassigned due to his departure. (See Roundup No. 12.)
Third, at its December 15 meeting the Texas Access to Justice Commission rejected a proposal from the Commission’s Access to Legal Services Working Group that would have established a pilot program to allow non-attorney ownership under an exception to Texas Disciplinary Rule of Professional Conduct 5.04 for entities to provide services to low-income Texans. (Full disclosure, I was a member of the Working Group and I supported this proposal.) The Commission, however, did vote to authorize licensed paraprofessionals to represent low-income Texans in limited areas of law and to allow community justice workers to provide limited-scope representation under the supervision of an attorney working for legal aid or similar nonprofits. I hope the Commission will re-visit the decision on the non-attorney ownership proposal in 2024. Nearly a dozen other jurisdictions in 2023 “moved to boost access to justice this year by considering or implementing programs that allow non-lawyers to work as legal advocates or own law firms,” according to Bloomberg News. In my view, it is unfortunate that Texas is not (yet) a leader in this effort.
Story #4 All Things Generative AI
You’d think that lawyers would have learned by now not to trust generative AI tools like Chat-GPT for conducting legal research and writing briefs, but the headlines keep delivering missteps and discipline on this front, most recently in December for a Colorado attorney.
The former president’s lawyer Michael Cohen also recently himself in trouble last month when his lawyer relied upon Google Bard and submitted a motion in federal court citing fake cases. Meanwhile, some judges ordered lawyers to certify they did not use AI in filings, and states like California and Florida issued guidance on generative AI for lawyers. (See Roundup No. 13.) Other states with active workgroups and task forces include Illinois, Kentucky, Minnesota, New Jersey, New York, and Texas. This is in addition to the work being done by the American Bar Association through the Task Force on Law and Artificial Intelligence commissioned by ABA President Mary Smith. See Roundup No. 6 for more information about the ABA’s work, and read more about state AI efforts in coverage from JD Supra here.
Story #5 The Judicial Conference and (Lack of) Ethics Reform
The federal judiciary has struggled with properly handling a range of ethics issues including financial disclosures and sexual harassment/workplace misconduct for years. (See Roundup No. 3 and Roundup No. 7 for my testimony about reforms before the judiciary and Congress.) In December, a ProPublica report emphasized these shortcomings and brought more to light. From ProPublica: “For decades, judges have relied on a select group to make sure the judiciary adheres to the highest ethical standards: themselves. … The judiciary's leaders argue that the conference has been an effective watchdog over America's third branch of government. … In reality, the Judicial Conference has instead often protected, not policed, the judiciary, according to interviews and previously undisclosed internal documents.”
A federal public defender’s lawsuit brought in 2023 may help galvanize reform, at least in the workplace. From Aliza Shatzman (Legal Accountability Project): “Law clerks and federal public defenders have no legal recourse when they are mistreated by the most powerful members of the judiciary. The perception among some in the judiciary is that you ‘give up a lot’ as a judiciary employee. Because the federal judiciary — including law clerks and federal public defenders — are exempt from Title VII of the Civil Rights Act of 1964, if you are harassed, discriminated against, or retaliated against by a member of the judiciary, you cannot sue and seek damages for harms done to your career, reputation, and future earning potential. But now, former North Carolina federal public defender Caryn Devins Strickland is suing to change that for more than 31,000 federal judiciary employees nationwide.” Shatzman’s op-ed offers several important recommendations and reforms.
Story #6 Lawyer Well-Being and the Duty of Competence
A special task force commissioned by the Michigan Supreme Court and the State Bar of Michigan 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. (For more on mental health and suicide prevention for lawyers, see Roundup No. 21.)
Several of the 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. A second recommendation promotes incentives, rather than discipline, for lawyers who demonstrate commitment to well-being. 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. I hope every state considers similar proposals in 2024.
Story #7 Diversity and the Courts
2023 was a mix of setbacks and progress for diversity among the state and federal courts. 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. 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.) Meanwhile, the reality is that there is a concerning lack of diversity in the judiciary. For example, in May 2023, the Brennan Center for Justice concluded: “State supreme court benches fail to reflect the racial, ethnic, and gender diversity of the communities they serve and the diversity of the legal profession.” Download the report here. As another example, the South Carolina Supreme Court is currently all-male, though Justice John Kittredge advocated for diversity before the legislature asking that those “weighing changes to the judicial selection process be sensitive to increasing the number of women and racial minorities throughout the bench.” Read more here. By contrast, the Biden administration announced a record-breaking 100 women confirmed as federal judges, the most of any president during the first term. From the HuffPost: “President Joe Biden … put 150 people into lifetime federal judgeships – and of those, 100 are women and 98 are people of color.” Read more here.
Story #8 Litigation Pushing for Nonlawyer Advocates Continues
While not necessarily the most efficient route to reform, litigation has been the path for expanding access to justice and reforming legal ethics rules. (See, for example, NAACP v. Button, decided by the US Supreme Court in 1963. For more on this, and similar cases, revisit Roundup No. 14 - A Legal Ethics Eras Tour.) Challenges to unauthorized practice of law restrictions continued to make their way through the courts during 2023. As Bruce Green and David Udell wrote in the New York Times: “These laws prohibiting the unauthorized practice of law hurt those who cannot afford a lawyer. Even those who have relevant training or personal experience but are not lawyers may not offer free advice on how to handle a common legal problem. … A civil rights lawsuit pending in New York in the United States Court of Appeals for the Second Circuit, Upsolve v. James, provides a prime example of the broad sweep of these laws.” The Upsolve case involves bankruptcy assistance for individuals.
A second case in South Carolina involves assistance with housing: South Carolina State Conference of the NAACP v. Wilson. From Law360: “A group of legal scholars has urged the U.S. Court of Appeals for the Fourth Circuit to prevent a South Carolina law, which bars nonlawyers from giving legal advice, from applying to a new eviction-help program by the NAACP, saying the program is necessary to confront the state's dire access to justice crisis, court documents show. … Arizona State University professor Rebecca L. Sandefur and 26 legal scholars said South Carolina faces an ‘increasingly acute crisis of access to justice,’ particularly in cases involving evictions: thousands of state residents become suddenly homeless every year, which impacts their employment, family stability and health. Nonlawyers like the NAACP's housing advocates can make a difference by providing much-needed assistance to those people.” (Full disclosure: I’m one of the 26 scholars who joined Sandefur on the brief.)
Story #9 Judge Pauline Newman Remains
The inaugural edition of the Legal Ethics Roundup asked: “How old is too old to remain a judge on the federal bench?” Pauline Newman is a 96-year-old member U.S. Court of Appeals for the Federal Circuit. As Law360 reported, “[t]he Federal Circuit's investigation into whether 96-year-old Judge Pauline Newman is mentally fit to serve as a judge and her subsequent suspension captured the attention of attorneys throughout 2023.”
Judge Newman resisted mandated medical testing, including a neurological evaluation, after other judges and court staff reported concerns about her health. A three-judge special committee voted to sanction her, suspending her from cases for at least a year or until she participated in the medical tests, and the full Federal Circuit Judicial Council adopted the sanction. But, she ultimately returned to the bench. In December, the Federal Circuit Judicial Council asked a D.C. federal judge to dismiss the lawsuit Judge Newman brought against here colleagues. Read more on that here, including a timeline of key events in the matter.
Story #10 So MANY Headlines on Lawyer and Judicial Ethics
The biggest story of 2023 is the very reason why I launched the Legal Ethics Roundup in August — there have been an overwhelming number of headlines on lawyer and judicial ethics. Here’s what others included in their top legal ethics stories from 2023, some of which overlap with my list and many that ended up on my cutting room floor. Law360 reporter Jack Karp compiled a list of the “biggest legal ethics cases of 2023.” Responsive Law’s Tom Gordon offered a countdown of the top five stories on access to legal services here. From Fix the Court, Gabe Roth summed up the year with two top-five lists. Over at LawSites, Robert Ambrogi compiled his 40 most-read blog posts to conclude that in 2023 the legal industry was “consumed with generative AI.” For a Canadian perspective “on five areas of key developments in lawyers’ ethics and lawyer regulation in 2023” check out Amy Salyzyn’s column at Slaw. Finally, looking ahead to 2024, Lucian Pera and Trisha Rich identify “ten trends to note from 2023” in legal ethics.
Rest in Peace
I want to also acknowledge the passing of two giants in the field of lawyer and judicial ethics, Professor Charles Ogletree (see Roundup No. 2) and Supreme Court Justice Sandra Day O’Connor (see Bonus Content No. 7 for previously unpublished materials from the Reagan archives about her confirmation and Bonus Content No. 8 for my photos and reflections on attending her private funeral service at the National Cathedral).
Want to catch up on the most-read editions of the Legal Ethics Roundup in 2023?
Here’s a list with links to the top five.
Keep in Touch
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Happy 2024. I wish you a wonderful week! See you next Monday.