LER No. 28 - Black Writers on Justice, Legal Ethics on Netflix, ChatGPT Strikes Again, Judges in Hot Tubs + Texting at Trial, Rule 8.4(g) Before SCOTUS, Jobs, Events & More (02.05.24)
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
Welcome
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Hello from Chicago. I love this city. It’s where I grew up, if you define “growing up” as the era when one figures out who they are in this world (or at least starts to…). I lived on the northwest edge of the city, at very end of the Brown Line, in college. Then I sped along Lake Shore Drive commuting from Andersonville to Hyde Park for three years during law school.
This weekend, on a quick getaway with a favorite friend, I unexpectedly found myself downtown in the Loop at a hotel around the corner from the Chicago Board of Trade — my first internship — and across the street from the pink skyscraper that once held the offices of Mayer Brown & Platt — my first real lawyer job. More than two decades have passed since I left the city. I’ll have more to say about that after my 25 year law school reunion in May! But, for now, let me share a new discovery from this weekend.
The American Writers Museum opened its doors in 2017, founded by Malcom O’Hagan and Werner Hein (with pro bono help from my former employer Mayer Brown, a not-so-surprising coincidence!). The museum’s mission is “to celebrate the enduring influence of American writers on our history, identity, culture, and daily lives.” There is also significant emphasis on the importance of writing in the pursuit of justice. Nearly every display touched on some aspect of civil rights, the legal system, advocacy, and reform. The temporary exhibit Dark Testament: A Century of Black Writers on Justice, is what drew me into the museum’s doors early Sunday morning.
Highlights included profiles of W. E. B. Du Bois (a founder of the NAACP) and lawyer/poet/priest Pauli Murray (the source for Roundup No. 27’s Wisdom for the Week). Do you recognize the others?
If you’re in Chicago this spring, it is well worth your time to visit. But no matter where you are, this online tour beautifully captures the sixteen writers and the talented artists who created their stunning portraits.
And now, let’s dig into the legal ethics headlines from the past week.
Highlights from Last Week - Top Ten Headlines
#1. Decline in Public Opinion of Lawyers’ Ethical Standards. From the ABA Journal: “Only 16% of Americans rate lawyers’ honesty and ethical standards as ‘high’ or ‘very high,’ according to a Gallup poll taken in December. The percentage has decreased since 2022, when 21% of Americans said lawyers had high or very high honesty and ethical standards, and since 2019, when the percentage was 22%, according to a Jan. 22 press release with results of Gallup’s 2023 Honesty and Ethics poll.” Read more here.
#2 Challenge to Rule 8.4(g) Before SCOTUS. From Reuters: “A Pennsylvania lawyer who challenged an anti-harassment and anti-discrimination professional rule for lawyers in the state asked the U.S. Supreme Court on Wednesday to weigh in on the case. The 3rd Circuit U.S. Court of Appeals in August said Zachary Greenberg, an attorney with the non-profit Foundation for Individual Rights and Expression, had not shown that the professional conduct rule threatened his constitutional free speech rights.” Read more here. (For coverage on the original 3rd Circuit decision, see Roundup No. 6, Headline #3.)
#3. Chat GPT Strikes Again. From Bloomberg Legal: “An attorney in suburban New York City faces possible sanctions for using ChatGPT to generate a nonexistent state court decision she cited in a legal filing. The conduct of Uniondale, New York lawyer Jae Lee of the JSL Law Offices fell ‘well below the basic obligations of counsel,’ the US Court of Appeals for the 2nd Circuit ruled Tuesday. The court referred Lee to a grievance panel, which considers possible discipline such as fines and suspensions.” Read more here.
#4. Judicial Discipline for Hot Tub and Early Morning Complaints? From the ABA Journal: “A Las Vegas judge is facing ethics charges partly for a social media photo of herself sporting a bikini while in a hot tub with public defenders. Clark County, Nevada, Judge Erika Ballou is facing a Jan. 24 misconduct complaint filed by the Nevada Commission on Judicial Discipline. The document cites the hot tub post as well as a second post complaining about an early court calendar.” Read more here.
#5. Increase in Sexual Harassment Complaints in Federal Courts. From Law360: “Last year, there were six complaints of ‘unwanted, abusive or offensive sexual conduct’ by federal judges, marking the most reported incidents since the judiciary began tracking harassment in the 2020 fiscal year.” Read more here.
#6. FL Supreme Court Defunds DEI at State Bar. From the Florida Bar website: “The Florida Supreme Court has directed the Florida Bar to eliminate funding for diversity and inclusion initiatives from its forthcoming budget, a move that includes the removal of allocated funds for the Bar’s Diversity and Inclusion Committee.” Read more here.
#7. Update on #MeToo + Former George Mason Law Professor. From Reuters: “George Mason University, in a bid to throw out a discrimination lawsuit filed by former law professor Joshua Wright, said on Friday that Wright was painting himself as the ‘victim of sexual harassment and anti-male gender bias,’ after ‘several women’ had accused him of inappropriate sexual conduct. The university's motion to dismiss Wright's lawsuit, filed in a Virginia federal court, said that the school did not mishandle an investigation into sexual misconduct claims against Wright, a former commissioner on the Federal Trade Commission.” Read more here. (And revisit past LER coverage at Roundup No. 3 and Roundup No. 4.)
#8. Challenge to Judges’ Policy Encouraging Opportunities for Newer, Female, and Minority Lawyers to Argue Cases. From Reuters: “A conservative legal group has filed a judicial misconduct complaint accusing three federal judges in Illinois of discrimination, citing policies they adopted to give young women and minority lawyers greater opportunities to argue cases in court. … Several federal judges nationally in recent years have adopted orders that encourage senior lawyers to give younger attorneys a chance to argue cases, citing a lack of in-court advocacy opportunities as fewer cases go to trial.” Read more here.
#9. Possible Discipline for Social Media Use During Trial. From the Associated Press: “An Oklahoma judicial ethics panel is investigating a new state judge who can be seen on courtroom video scrolling through social media and texting on her cellphone throughout a murder trial, according to a local sheriff’s office.” Read more here.
#10. SCOTX Stays Paxton Deposition Order. From the Austin American-Statesman: “The Texas Supreme Court on Tuesday stayed a court order compelling Attorney General Ken Paxton's deposition in the years-long wrongful termination lawsuit that prompted his impeachment last year. The ruling will further delay Paxton's testimony, which was scheduled Thursday in Austin.” Read more here.
This Week in Ethics History
February 7, 2013. Mississippi finally officially abolished slavery, the last state to do so. (And no, sadly 2013 is not a typo.) Apparently the state ratified the Thirteenth Amendment in 1995 (also not a typo) but the proper paperwork was not filed with the federal register, thus the delay for an additional 18 years.
February 9, 1940. The South African writer J. M. Coetzee was born. He won the Nobel Prize for Literature in 2003. His many books include Waiting for the Barbarians, a tale about a magistrate’s ethical struggles. (For more on his book and other post-colonial fiction literary legal ethics portrayals, see my article Beyond Atticus Finch: Lessons on Ethics and Morality from Lawyers and Judges in Postcolonial Literature.)
Recommended Reading — Recent Scholarship
Barred From The Profession, Mischaracterized As Unfit By Law by Julia Mizutani (Cornell). From the abstract:
There is growing recognition that the bar examination can have racial and social effects when determining who can be an admitted and barred attorney in the United States. This article explores the history and current racialized issues with the other portion of bar admission - the character and fitness process. The simultaneously rigid and fluid definition and subjective enforcement of “good moral character” is only one example of how the law continues to reproduce and maintain racial and class hierarchy by creating barriers to entry. This article does not come to any direct conclusions or specific solutions. This article is a discussion on whether or how mechanisms such as moral character investigations, background checks, credit score inquiries and other entry requirements to professions reproduce racial hierarchy even when the mechanism may appear neutral. Becoming a lawyer is often a gateway to positions of power in the U.S. political system. Beyond the judiciary, lawyers make up a significant percentage of governors, congressional committees, and legislative staff at both the state and federal level. Critically examining the ways in which barriers to a profession that serves as a pathway to power have been constructed to keep the profession White and upper class is central to understanding how the law has operated in the creation and maintenance of racial and social hierarchy.
Race Ethics: Colorblind Formalism and Color-Coded Pragmatism in Lawyer Regulation, Georgetown Journal of Legal Ethics (2023) by Anthony Alfieri (Miami). From the abstract:
The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville “Unite the Right” Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns, nor the advance of Critical Race Theory and social movement scholarship has resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more generally. Spoken in archetypal tropes, seen in stereotypical images, and heard in stock stories, race infects the central lawyering roles of advocate and advisor, echoing inside and outside courthouses and resounding in the rules of professional responsibility and the norms of professionalism. By turns cast in colorblind, color-coded, and color-conscious oral, written, and symbolic forms, the meaning of racial identity, racialized narrative, and racially-demarcated community is both constructed and contested in the lawyering process and in the regulation of lawyer conduct. In prior writings across the fields of civil rights, criminal justice, and poverty law, I mapped the intersection of race, representation, and ethics against the contours of the lawyering process, professional regulation, and legal education, especially within law school clinics and indigent civil and criminal justice systems. The purpose of this article is to revisit that body of writing and to reevaluate the continuing uses and the persisting stigma harms of race in contemporary civil rights and criminal justice advocacy, particularly in cases of racial violence. The goal of revisiting and enlarging this previous work is to grasp more fully how civil rights lawyers, prosecutors, and defense attorneys use race to advantage or disadvantage Black litigants, victims, jurors, witnesses, and even other lawyers—and, moreover, how they use ethics rules and standards designed to regulate racial bias and prejudice to justify their conduct.
Legal Ethics in Popular Culture
I just finished watching The Law According to Lidia Poët, a six episode series from Netflix based upon the real-life first female lawyer in Italy. It’s great. As a review in the Collider explains:
With Matilda De Angelis donning the robe of Italy's first modern female lawyer, Netflix's The Law According to Lidia Poët follows the footsteps of its titular protagonist as she works her way out in a male-dominated Turin in the year 1883. …Following Lidia Poët in her attempts at rescuing defendants often neglected by the justice system, The Law According to Lidia Poët also tries to shed light on the struggles faced by the Italian lawyer amidst a system that is yet to shed its 19th-century male chauvinism. During her endeavors of finding justice for her ill-fated clients, Poët discovered that it was more difficult for a woman to deliver justice than it was for a man. Matilda's Lidia Poët is based on the real-life 19th-century Italian lawyer of the same name who fought a long battle against the system to win the right for women to practice law. Born in Italy in 1855, Poët graduated in law from the University of Turin, receiving her degree on June 17, 1881, and becoming the first modern female lawyer in Italy.
Read the full review, including lots of details about the real Lidia Poët’s battle for women’s rights, here. (I keep wondering…when will a Netflix scriptwriter discover the shortlisted sisters of the Supreme Court?!?)
Lawyer(s) of the Week
Fulton County District Attorney Fani Willis filed a brief to finally address the swirling allegations about a romantic relationship with Nathan Wade. Here’s an excerpt: “While the allegations raised in the various motions are salacious and garnered the media attention they were designed to obtain, none provide this Court with any basis upon which to order the relief they seek.” Read all 176 pages here. In response, Jesse Wegman (New York Times) questioned “Seriously, Fani Willis?” in an op-ed and wrote:
Let me get this straight: You are prosecuting the former president of the United States — a man who is better than anyone alive at exploiting his opponents’ weaknesses — and you give him the gift of a romantic affair with the lead prosecutor of his case? For weeks, Fani Willis, the district attorney for Fulton County, Ga., had been silent in the face of sordid accusations that she was romantically involved with the prosecutor, Nathan Wade, whom she had hired to manage her racketeering case against Donald Trump. On Friday afternoon, Willis issued a statement that was a Clintonian stew of bloodless legalisms, admitting the affair but saying it doesn’t matter.
Read more from Wegman here. I don’t disagree with his criticism, but I also appreciate that Willis is responding through the appropriate channels. She may yet still decide to step aside, or even be removed, but whatever the consequences it is better for her to address them through the legal process rather than firing back in the press or social media. For finally offering an explanation, she’s our lawyer of the week. (And for my take on what will happen with the underlying indictments, see Roundup No. 25, Headline #1.)
Judge(s) of the Week
From the USA Today: “Saying she is ‘tired’ and ‘working harder than I ever have,’ Supreme Court Justice Sonia Sotomayor on Monday offered a rare glimpse of life on a bench that is dominated by conservatives. ‘I live in frustration’ Sotomayor, 69, told students at the University of California, Berkley School of Law, according to media reports. ‘Every loss truly traumatizes me in my stomach and in my heart.’ Sotomayor's remarks were an unusual look at the dynamics of working on a Supreme Court controlled by justices appointed by Republican presidents − including three appointed by former President Donald Trump.” Read more here. For her candor and her endurance, Justice Sotomayor is 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 in January, 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!) Four weeks ago the Roundup highlighted the work of Gabe Roth at Fix the Court. Three weeks ago the Roundup took a deeper dive into Responsive Law with Tom Gordon. Two weeks ago we explored the work of Lawyers Defending American Democracy. Last week featured the Legal Accountability Project (LAP), with Aliza Shatzman. This week we turn to The 65 Project, led by managing director Michael Teter. [Disclaimer, I serve on the advisory board for The 65 Project, along with Chief Justice Christine Durham, Stuart Gerson, Roberta Cooper Ramo, and Paul Rosenzweig.]
RKJ: Please share one “success” in efforts to reform ethics and/or professional conduct rules governing lawyers and/or judges?
MT: The 65 Project successfully got the Colorado State Bar to discipline Jenna Ellis in a proceeding in which she ultimately admitted that she lied about election fraud following the 2020 election.
RKJ: What is the most important action that Congress could take immediately to address reforms proposed by your organization?
MT: Congress could impose standards on lawyers representing government officials or entities that extend beyond the applicable rules of professional conduct with regards to making false statements to the public or assisting a client with engaging in conduct that is fraudulent or involves a gross usurpation of government power, and by mandating disclosure of conduct of government officials that is criminal or fraudulent; is clearly prohibited by applicable law relating to that government office or entity; constitutes a gross usurpation of government power; or undermines the legitimate outcome of an election
RKJ: What is the most important action that state or local government body could take immediately to address reforms proposed by your organization?
MT: Providing additional resources for disciplinary investigations involving matters of public trust and democracy.
RKJ: What is the most serious problem facing the legal profession today? How does your organization address this (if it does)?
MT: The most serious problem is arguably the lack of legitimacy the profession enjoys in the face of the attacks on democracy and the rule of law more generally. The 65 Project is focused on addressing the attacks on democracy and the abuse of the legal system for political purposes by seeking to hold those lawyers who engage in such efforts accountable.
RKJ: What’s the most influential book you’ve read, podcast you’ve heard, etc. that’s inspired you in your work?
MT: The testimony of Ruby Freeman and Wandrea “Shaye” Moss before the January 6th Committee.
Get Hired
Did you miss the 70+ job postings from previous weeks? Find them all here.
Conflicts and Ethics Attorney, King & Spaulding — numerous locations/hybrid remote. Responsibilities include reviewing the firm’s new business intake forms and related documents, including conflict reports and engagement terms to identify and resolve business and ethical conflicts and to ensure compliance with firm policies before matter opening. Learn more here.
Conflicts Attorney, Stoel Rives — Portland. Responsibilities include conflicts analysis, new business intake, creation of waivers/ethical walls, and more. Learn more here.
Conflicts Attorney, Littler — Atlanta, Kansas City, Washington DC. Responsibilities include conducting research and providing analysis relating to the firm’s ethical duties in accordance with the applicable rules of professional conduct and firm policies. Learn more here.
Director of Conflicts Operations — Husch Blackwell, Providence, RI. The ideal candidate will also have subject matter expertise in legal ethics and conflicts rules, practices, and procedures, as well as proficiency with conflicts software systems. Learn more here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all 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 20 — People’s Parity Project Reading Group on What to Do About the Courts. 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 March 19, April 16, May 28, and June 25.
February 28-March 1 — Access to Justice and the Future of Justice Work Conference, Arizona State University. Register for this FREE event here. I’ll be delivering the keynote, discussing Law Democratized: A Blueprint for Solving the Justice Crisis.
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. Full disclosure—I’m one of the invited speakers. Other 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
“All’s fair in love and poetry...” — The Chairman of The Tortured Poets Department
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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