LER No. 27 - Prosecutorial Misconduct, SCOTUS Clerk Bonuses, Mentoring, Black History Month, Fake Cites Hit Canada Court, RIP Charles Fried, Jobs, Events & More (01.29.24)
The Legal Ethics Roundup - your Monday morning tour of all things related to lawyer and judicial ethics with University of Houston law professor Renee Knake Jefferson
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This Thursday, February 1, marks the start of Black History Month. President Gerald Ford was the first to officially recognize the month in February 1976, delivering this message:
Every president since Ford has continued this official designation. I have a bit more to say about this below under “This Week in Ethics History” but for now, let’s jump into the headlines. It was another busy week in the world of legal ethics—I could have easily complied a top 20 headlines list!
Highlights from Last Week - Top Ten Headlines
#1 Prosecutorial Misconduct at SCOTUS. From SCOTUSblog: “Eight years after the Supreme Court blocked his execution so that it could consider a challenge to Oklahoma’s lethal-injection protocol, the justices agreed on Monday to take up the case of Richard Glossip, who is seeking to set aside his conviction and death sentence. In an unusual twist, Oklahoma Attorney General Gentner Drummond supported Glossip’s petition for review, telling the court that ‘justice would not be served by moving forward with a capital sentence that the State can no longer defend because of prosecutorial misconduct and cumulative error.’” Read more here. As a Reed Smith news release notes, professor and former dean Larry Hellman (Oklahoma City University School of Law) was significantly involved in this matter: “After carefully reviewing this evidence in light of the Oklahoma Rules of Professional Conduct in force at the time of Glossip’s 2004 retrial, as well as relevant case law, Professor Hellman determined sufficient basis exists for an evidentiary hearing to assess the evidence and make findings of fact regarding apparent professional misconduct.” Read more about Hellman’s work on the case here. For details on other legal ethics issues in cases before the Supreme Court this term, see Bonus Content No. 3.
#2 Mentoring Matters. From the ABA Journal: “Lawyers would like to see a greater emphasis on training and mentoring at their law firms, according to a survey released this week by recruiting firm Major, Lindsey & Africa and Law360 Pulse.” Read more here. (In my view, lawyers have a professional obligation to mentor that should be addressed by legal ethics rules — for more on that, check out my Fordham Law Review article published last year, “Mentored: On Leaders, Legacies, and Legal Ethics.”)
#3 Supreme Court Clerk Bonuses Reach All-Time High. From the Washington Post: “The recruitment is so competitive that signing bonuses for Supreme Court law clerks have reached a new high — $500,000, according to a spokeswoman for law firm Gibson, Dunn & Crutcher. Such a sum far exceeds the salaries paid to the justices — the clerks’ former bosses — who are paid slightly less than $300,000 a year. … The half-million-dollar bonuses come as many other aspects of the court are under scrutiny. The public increasingly sees the court as a partisan institution rather than impartial arbiters of justice, polls show. And under pressure after news reports documented benefits like lavish trips that Clarence Thomas and Samuel A. Alito Jr. received from wealthy members of the conservative legal world, the justices released an ethics code for themselves in November.” Read more here.
#4 “What in the World Was Fani Willis Thinking?” From Ruth Marcus in the Washington Post: “As a legal matter, the allegations about a romantic relationship between Fulton County District Attorney Fani T. Willis and the chief prosecutor in the election interference case against former president Donald Trump are irrelevant. Even if all the claims are true, they wouldn’t imperil the prosecution or justify dismissing the indictment, as one of Trump’s co-defendants is seeking. As a question of atmospherics, though, the situation is a disaster — an unexpected gift to Trump that he will exploit not only to discredit the Georgia prosecution but also to augment his broader claims of being unfairly persecuted.” Read more here.
#5 “Defendants in the Georgia Election Case Have No Reason to Complain — Even if the Fani Willis Allegations are True.” From Bruce Green in CNN: “While Willis may have engaged in nepotism in appointing Wade to lead an important prosecution, it seems doubtful that any of the defendants have a legitimate cause to complain. … As New York Law School professor Rebecca Roiphe and I have previously written however, courts rarely remove prosecutors based on a conflict of interest because as professionals, prosecutors are able to put self-interest and personal preferences to the side except in extreme cases.” Read more here.
#6 Should #MeToo-Related Claims Be Considered by Licensing Authorities? Here’s what I had to say to Bloomberg Law about this question: “Renee Knake Jefferson, a professor of legal ethics at the University of Houston Law Center, said in an email that #MeToo-related claims without formal charges can be difficult for bar authorities to measure. She cited the series of sexual misconduct accusations by former law clerks against former federal appellate judge Alex Kozinski, who retired from the judiciary but continued to practice law.” Read more here.
#7 Malpractice in Trump Defamation Case. From Business Insider: “Donald Trump's lawyer made headlines last week after she violated basic courtroom rules and proper legal procedure in the E. Jean Carroll defamation trial. … Alina Habba's behavior would have opened her up to potential malpractice liability in any other case, said one ethics lawyer.” Read more here. (Of course the biggest news about this trial was last week’s $83M verdict!)
#8 Ninth Circuit Joins Courts Looking at AI Policies. From Bloomberg Law: “The West Coast-based US Court of Appeals for the Ninth Circuit is creating a committee focusing on the impact of artificial intelligence on legal practice, the latest federal court to address the growing technology. The AI committee was convened by the court’s Chief Judge Mary Murguia and is set to be chaired by Judge Eric D. Miller, who joined the court in 2019[.] … [T]he AI committee will identify issues that could arise from the use of AI in court and make suggestions as to practices that should be encouraged or banned.” Read more here.
#9 Global Perspectives — Canadian Court Sees First Fake AI-Generated Legal Citations. From the Global News: “A B.C. courtroom is believed to be the site of Canada’s first case of artificial intelligence inventing fake legal cases. Lawyers Lorne and Fraser MacLean told Global News they discovered fake case law submitted by the opposing lawyer in a civil case in B.C. Supreme Court. ‘The impact of the case is chilling for the legal community,’ Lorne MacLean, K.C., said. ‘If we don’t fact check AI materials and they are inaccurate it can lead to an existential threat for the legal system: people waste money, courts waste resources and tax dollars, and there is a risk that the judgments will be erroneous, so it’s a huge deal.’” Read more here. (H/T Amy Salyzyn)
#10 More Global Perspectives — UK’s Legal Services Board & Legal Ethics. “The Legal Services Board (LSB) is to begin work on identifying the gaps in regulation that have allowed unethical or unprofessional conduct to emerge. It is the latest stage in the LSB’s professional ethics and the rule of law work programme, which for the past 18 months has been gathering evidence of behaviour that falls short of the standards expected by the public.” Read more here.
In Memoriam
From the Washington Post: “Charles Fried, a legal scholar and ethicist who explored questions of morality and law but also engaged in self-examination of his own views, including backing constitutional abortion rights decades after he argued against them as solicitor general during the Reagan era, died Jan. 23 at 88. The death was announced by Harvard University, where Dr. Fried began teaching law in 1961.” Read more here. Among other important works, Fried wrote The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation. I’ve included it in his memory as “Recommended Reading,” below.
This Week in Ethics History
February 3, 1975. President Gerald Ford issued a Message on the Observance of Black History Week urging all Americans to "recognize the important contribution made to our nation's life and culture by black citizens." The following year, he issued a Message on the Observance of Black History Month (pictured above under “Welcome”). A decade later, on February 11, 1986, Congress passed Public Law 99-244, which designated February 1986 as "National Black (Afro-American) History Month.” The legislation provided that February 1, 1986 would “mark the beginning of the sixtieth annual public and private salute to Black History.” The American Bar Association maintains a collection of Black History Month resources here. The National Bar Association also maintains a history page here. (The NBA was formed in 1925 because Black lawyers were excluded at the time from membership in the ABA and most local majority bar associations.)
Ethics Reform Watch
Florida Bar Issues Non-Binding Ethics Opinion on the Use of Generative Artificial Intelligence
From Florida Bar Ethics Opinion 24-1, issued January 19, 2024:
Lawyers may use generative artificial intelligence (“AI”) in the practice of law but must protect the confidentiality of client information, provide accurate and competent services, avoid improper billing practices, and comply with applicable restrictions on lawyer advertising. Lawyers must ensure that the confidentiality of client information is protected when using generative AI by researching the program’s policies on data retention, data sharing, and self learning. Lawyers remain responsible for their work product and professional judgment and must develop policies and practices to verify that the use of generative AI is consistent with the lawyer’s ethical obligations. Use of generative AI does not permit a lawyer to engage in improper billing practices such as double-billing. Generative AI chatbots that communicate with clients or third parties must comply with restrictions on lawyer advertising and must include a disclaimer indicating that the chatbot is an AI program and not a lawyer or employee of the law firm. Lawyers should be mindful of the duty to maintain technological competence and educate themselves regarding the risks and benefits of new technology.
ABA Seeking Comments on Proposal for Accreditation of Fully Online Law Schools
The ABA is considering revisions to Standard 102 on Provisional Approval and Standard 306 on Distance Education. Read the draft reforms and learn more about how to submit comments here.
Recommended Reading — Remembering the Work of Charles Fried
The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, Yale Law Journal (1976) by Charles Fried. From the abstract:
Can a good lawyer be a good person? The question troubles lawyers and law students alike. They are troubled by the demands of loyalty to one's client and by the fact that one can win approval as a good, maybe even great, lawyer even though that loyalty is engrossed by overprivileged or positively distasteful clients. How, they ask, is such loyalty compatible with that devotion to the common good characteristic of high moral principles? And whatever their views of the common good, they are troubled because the willingness of lawyers to help their clients use the law to the prejudice of the weak or the innocent seems morally corrupt. The lawyer is conventionally seen as a professional devoted to his client's interests and as authorized, if not in fact required, to do some things (though not anything) for that client which he would not do for himself. In this essay I consider the compatibility between this traditional conception of the lawyer's role and fulfillment of the most demanding moral principles, and not just barely within the law. So I shall not be particularly concerned with the precise limits imposed on the lawyer's conduct by positive rules of law and by the American Bar Association's Code of Professional Responsibility except as these provide a background. I assume that the lawyer observes these scrupulously. My inquiry is one of morals: Does the lawyer whose conduct and choices are governed only by the traditional conception of the lawyer's role, which these positive rules reflect, lead a professional life worthy of moral approbation, worthy of respect-ours and his own?
Lawyer(s) of the Week
From a Drake University Official News Release: “Drake University is excited to welcome Roscoe Jones, Jr. as Dean of its Law School, effective July 1, 2024. Jones will become the 22nd dean of the Drake Law School. He joins Drake from Gibson, Dunn & Crutcher’s Washington, D.C. office where he is a partner and co-chairs the firm’s Public Policy Group. Jones is making history as not only the first Black dean of Drake Law School, but also the University’s first Black dean of any college or school. Recognized as one of Lawdragon’s ‘500 Leading Lawyers in America,’ listed as one of The Hill’s ‘Top Lobbyists,’ and named by Chambers USA as a leading government relations practitioner, Jones brings with him a wealth of leadership, policy, and legislative experience.” (He’s also an elected member of the American Law Institute, which is where I’ve gotten to know him.) Read the complete release here. This is an impressive hire for Drake Law, and I’m looking forward to seeing all that soon-to-be-Dean Jones will accomplish in his new role. For moving from practicing law to educating the next generation of lawyers through his leadership, he’s our lawyer of the week.
Judge(s) of the Week
From a United States Supreme Court Official News Release: “Chief Justice John G. Roberts, Jr., today announced the appointment of Judge Robert J. Conrad, Jr., as the Director of the Administrative Office of the U.S. Courts, effective March 1, 2024. He will succeed Judge Roslynn R. Mauskopf who has served as Director since February 1, 2021, and who will retire from the Federal Judiciary on January 31, 2024.” Wondering exactly what the Director of the Administrative Office does? According to the news release, the Director “is the chief administrative officer of the federal courts. The Director serves under the direction of the Judicial Conference of the United States, the principal policy-making body for the federal court system.” More specifically, “Judge Conrad will assume full-time responsibility for the management of the Administrative Office, which has over 1,000 employees, and for providing administrative support to 2,400 judicial officers, and over 28,000 court employees and Federal Defender employees. He will serve as liaison for the Judicial Branch in its relations with Congress, including working with congressional committees to secure the Judiciary’s annual appropriation and executing the Judiciary’s budget.” Read the full news release here. While Judge Conrad’s responsibilities do not explicitly include enforcement of the Supreme Court’s new ethics code, perhaps he will have some influence? For his service as a Senior Judge of the United States District Court for the Western District of North Carolina (his current role) and his soon-to-be new role, he’s our judge of the week.
Accountability in our Democracy
This part of the Roundup focuses on the legal profession’s accountability in our democracy. For a recap of past topics covered, head back to Roundup No. 21. As I explained there, starting this month, the Accountability in our Democracy section will feature nonprofit organizations working to improve lawyer and judicial ethics.
I submitted questions to founders and executive directors of more than a dozen organizations, and will be sharing what I learned from those who replied. Roundup No. 21 got you acquainted with their work and goals. (If you think I’m missing an organization from my list that should be added, please let me know!) Three weeks ago the Roundup highlighted the work of Gabe Roth at Fix the Court. Two weeks ago the Roundup took a deeper dive into Responsive Law with Tom Gordon. Last week we explored the work of Lawyers Defending American Democracy.
This week features the Legal Accountability Project (LAP), a nonprofit aimed at increasing the likelihood that judicial law clerks have positive clerkship experiences, while extending support and resources to those who do not. Aliza Shatzman is founder and president of the LAP, which was recently called the “Yelp for judges” in a Law360 article.
RKJ: Please share one “success” in efforts to reform ethics and/or professional conduct rules governing lawyers and/or judges?
AS: In the wake of high-profile allegations against former Ninth Circuit judge (and notorious harasser) Alex Kozinski, the federal judiciary implemented some modest reforms. These include: creating a national Workplace Conduct Working Group to “study” judiciary workplace conduct issues and propose reforms; creating a national Judicial Integrity Officer; (somewhat) standardizing the Employee Dispute Resolution (EDR) Plan, which is the internal courthouse dispute resolution process, with its 2019 Model EDR Plan; and creating some additional reporting channels. While these are improvements over the pre-Kozinski regime, which was basically the wild west of judicial misconduct, these reforms are insufficient. The Working Group has released several reports since then, including some suggested reforms the judiciary would like to further “study.” The federal judiciary seems not to recognize the scope of these problems, nor have they taken responsibility for correcting problematic behaviors in their ranks.
RKJ: What is the most important action that Congress could take immediately to address reforms proposed by your organization?
AS: Congress should immediately pass the Judiciary Accountability Act (JAA), urgently necessary legislation that would extend Title VII and other anti-discrimination protections to judiciary employees, including law clerks and federal public defenders. Currently, the judiciary is exempt from Title VII of the Civil Rights Act of 1964: judiciary employees who are harassed, discriminated against, or retaliated against by judges cannot sue and seek damages for harms done to their careers, reputations, and future earning potential. Right now, judges are above the laws they interpret and enforce. The JAA would extend protections against gender, disability, and age discrimination to more than 31,000 federal judiciary employees. The JAA would also create real judicial accountability, specifying that judicial misconduct investigations could continue even if the judge under investigation retires, resigns, or dies. Currently, if a judge steps down, the investigation into their misconduct ceases. The JAA would also create multiple confidential reporting channels for clerks; further standardize EDR plans; and create an overarching Commission on Judicial Integrity to oversee these programs, staffed primarily by members from outside the judiciary with civil rights and employment law experience, as well as several judges. The JAA would also finally require the judiciary to collect and report data on workplace culture, diversity (or lack thereof) in law clerk and federal public defender hiring, and the outcomes of judicial misconduct complaints, which are currently shrouded in secrecy. The lack of data in these areas has enabled some judges to get away with misconduct for decades. You can learn more about the JAA in my recent Above the Law article, Judges Who Interpret Title VII Should Themselves Be Subject To It.
RKJ: What is the most important action that state or local government body could take immediately to address reforms proposed by your organization?
AS:State judges’ workplace conduct is regulated by state judicial conduct commissions, most of which are quite toothless and do not take judicial misconduct complaints seriously. Every local system has room to improve. The non-Title VII reforms proposed in the JAA – investigations run by neutral civil rights investigators, multiple reporting channels, and data collection/transparency requirements - as well as clear timelines for investigating and responding to judicial misconduct complaints, should be implemented in every state and local jurisdiction. I testified before the D.C. Council’s Judiciary and Public Safety Committee at their annual oversight hearing in support of implementing these types of reforms at the D.C. Commission on Judicial Disabilities and Tenure in February 2023.
RKJ: What is the most serious problem facing the legal profession today? How does your organization address this?
AS: Judges’ mistreatment of their law clerks – and the lack of accountability for judges who engage in this type of misconduct – is the most urgent issue facing the legal profession. The profession’s ongoing failure – or refusal – to address this is a travesty and a slap in the face to every law clerk who experienced, or is currently experiencing, mistreatment by one of the most powerful members of our profession, with limited legal recourse. LAP addresses this in numerous ways. Our Clerkships Database is a front-end solution, helping students identify beneficial clerkships and avoid judges who mistreat their clerks. Legislative advocacy (including but not limited to passing the JAA) is a back-end solution. (Here’s a link to LAP’s post-clerkship anonymous survey which is used to build the database—please take a moment and share your clerkship experiences: survey.legalaccountabilityproject.org) Additionally, LAP’s robust thought leadership to bring about larger cultural change in the legal community will meaningfully address this problem. Law school clerkship directors, deans, and faculty members, as well as practicing attorneys, should stop deifying judges and must stop messaging that a “challenging” clerkship (a euphemism for mistreatment) is “worth it” for the prestige. Additionally, law schools should stop funneling students into clerkships with known harassers in order to inflate their clerkship numbers and should instead share all information about judges with students. Finally, it’s on all of us in the legal profession to foster a culture of reporting and honest dialogue around workplace mistreatment in clerkships, in order to stop the cycle of mistreatment and finally hold judges accountable. Considering the enormous premium the legal community places on clerkships and their outsized influence on attorneys’ future success, we owe it to the next generation of legal professionals to ensure transparency, accountability, equity, and safe workplaces – and to leave the profession better than the way we found it. The status quo is unacceptable.
RKJ: What’s the most influential book you’ve read, podcast you’ve heard, etc. that’s inspired you in your work?
AS: Gretchen Carlson’s book Be Fierce: Stop Harassment and Take Your Power Back, as well as some of her podcast interviews, inspire me. I was also quite inspired by She Said, which I read while I was participating in the judicial complaint process in the summer of 2021.
RKJ: Anything else you think LER readers should know?
AS: The lack of judicial accountability in our federal and state courts affects everyone - whether you clerked or not, whether you appear before judges or not. This issue has larger implications for fairness in judicial decision-making, the daily functioning of our courts, and the future face of the legal profession. Today’s law clerks are tomorrow’s prosecutors, public defenders, law firm partners, professors, and judges. By not holding judges accountable for their poor behavior, we send a message to the next generation that discrimination, harassment, and retaliation are acceptable conduct when they are in positions of power. These are also larger pipeline issues: we cannot diversify the legal profession unless we empower diverse attorneys to bring their full selves to work, including to a judicial chambers.
Get Hired
Did you miss the 70+ job postings from previous weeks? Find them all here.
Ethics Attorney, Akin Gump Strauss Hauer & Feld, NYC or DC with hybrid remote possible. Responsibilities include the timely and accurate identification and resolution of conflicts of interest and legal ethics issues, and advising firm attorneys in multiple jurisdictions on compliance with their ethical obligations. Learn more here.
Visiting Law Professors. The Southeast Association of Law Schools (SEALS) has a new portal open for professors seeking visits and law schools seeking visitors. While not exclusively related to legal ethics, I’m including it here to help spread the word about what looks to be a very useful resource. Here’s the portal link. SEALS also maintains a list of open positions for law deans, faculty, and fellowships here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
January 30 — People’s Parity Project Reading Group on What to Do About the Courts. Over six sessions this reading group will address disempowering the courts: how to understand the problem, historical and international perspectives on disempowerment reform efforts, the strengths and weaknesses of the tools available to us, as well as what building up a political movement around disempowering the courts might look like. Speakers include Niko Bowie, Aziz Rana, Sabeel Rahman, Amy Kapczynski, Ryan Doerfler, Samuel Moyn, and Astra Taylor. Register here for this FREE, virtual event. Future dates include February 20, March 19, April 16, May 28, and June 25.
February 1-3 — Legal Services Corporation's 2024 Innovations in Technology Conference, Charlotte, NC. Hundreds of technologists, legal aid advocates, court personnel, law school professors, pro bono coordinators, and other professionals will gather to explore cutting-edge technology projects that are revolutionizing access to justice and enhancing the provision of high-quality legal representation for low-income individuals. Register here.
February 1-3 — Association of Professional Responsibility Lawyers Mid-Year Meeting. Register here.
February 7 — International Legal Ethics Conference Call for Papers Deadline. Submissions opened last week for the 10th biennial meeting of the International Legal Ethics Association, which will be held July 17-19, 2024, in Amsterdam. (I love this conference. It’s where I got my start as a legal ethics scholar, a wonderful community of academics and experts who care deeply about lawyer and judicial ethics.) More information here.
February 9 — Fordham Urban Law Journal Symposium: With People Struggling and the Law Failing, What are the Solutions to the Access to Justice Crisis in America? Speakers include: Matthew Diller (Fordham), David Udell (National Center for Access to Justice), Lauren Sudeall (Vanderbilt), Norrinda Brown (Fordham), Tehra Coles (Center for Family Representation), Andrew Scherer (New York Law School), Neil Steinkamp (Stout), Rasheedah Phillips (PolicyLink), Larisa Bowman (Stanford), Bob Glaves (Chicago Bar Foundation), John Pollock (National Coalition for a Civil Right to Counsel), Radikha Singh (National Legal Aid and Defender Association), Bruce Green (Fordham), Matthew Burnett (American Bar Foundation), Michele Pistone (Villanova), Tanina Rostain (Georgetown), Rebecca Sandefur (Arizona State), Sateesh Nori (NYU), Ray Brescia (Albany), Hon. Glenn Grant, Laurel Jones (National Center for Access to Justice), and Janet Sabel (NYU). In-person and on Zoom. Register here.
February 28-March 1 — Access to Justice and the Future of Justice Work Conference, Arizona State University. Register for this FREE event here.
March 15 — Symposium on Ethics in the Judiciary and the Legal Profession: Are We in Crisis? Cardozo Law School is hosting this in-person event, which starts at 9AM and is open to the public. A caveat—I’m one of the invited speakers. Speakers include: Melissa Murray (NYU), Richard Painter (Minnesota), James Sample (Hofstra), Sung Hui Kim (UCLA), Rebecca Roiphe (New York Law), W. Bradley Wendel (Cornell), Ian Ayres (Yale), Deborah Pearlstein (Princeton), and Daniel Richman (Columbia). Register here for FREE in-person or online attendance, CLE credit available. More information here.
March 26 — Jeffrey Clark Disbarment Hearing Begins. This trial will be live-streamed on YouTube, and is scheduled for March 26-29 and April 1-5. (It was previously set for January.)
Wisdom for the Week
“One person plus one typewriter constitutes a movement.” - Pauli Murray, the first African American to earn a J.S.D. from Yale Law School (among other accomplishments - see Bonus Content No. 8 for more)
Catch Up
Here’s a list with links to the most-read editions of the Legal Ethics Roundup.
Keep in Touch
News tips? Announcements? Events? A job to post? Reading recommendations? Email legalethics@substack.com - but be sure to subscribe first, otherwise the email won’t be delivered.
Teaching Professional Responsibility or Legal Ethics? Check out the companion blog for my casebook Professional Responsibility: A Contemporary Approach for teaching ideas and other resources.
Want me to speak about my new book Law Democratized with your group or organization? Email my publicist Sydney Garcia at sydney.garcia@nyu.edu
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