LER No. 31 - Dean Disbarred, SCOTUS Allows Election Lawyer Sanctions, FTX Conflict + Fraud Allegations, Above the Line Network Launches to Increase A2J, Ethics History, Jobs, Events & More (02.26.24)
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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We are coming to the end of Black History Month. Here at the Legal Ethics Roundup, we’ve covered the history of the month’s official recognition and taken a tour of the compelling American Writers Museum exhibit on Black justice writers, though I don’t limit our exploration of Black history only to February (see, for example, Roundup No. 10 on Justice Thurgood Marshall or Roundup No. 13 on Richard and Mildred Loving). I’m closing out the month with a nod to James Baldwin. This is the view of a patio where he often held salons with writers and artists at La Colombe d’Or in Saint Paul de Vence, France, where he lived from 1970 until his death in 1987, a self-imposed exile/respite from the racism endured in the United States.
Baldwin, of course, was not a lawyer or a legal ethicist, but there’s much we can learn from his writing that applies to legal ethics and access to justice. As just one example, here’s a line from his book No Name in the Street (1972): “If one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected … and listens to their testimony.” For more from Baldwin, see “Wisdom for the Week,” below.
Now, let’s jump into the headlines.
Highlights from Last Week - Top Ten Headlines
#1 SCOTUS Sticks with Sanctions for Lin, Powell, and Other Election Fraud Lawyers. From Reuters: “The U.S. Supreme Court on Tuesday declined to hear appeals from attorneys aligned with Donald Trump who were sanctioned over their efforts to overturn the former Republican president’s 2020 election loss. The justices’ decision, issued without elaboration, leaves in place a Michigan federal judge’s 2021 order imposing punishment on prominent conservative attorneys L. Lin Wood and Sidney Powell for their work on a lawsuit against the city of Detroit and other defendants.” Read more here.
#2 Some Federal Judges Still Aren’t Complying with Financial Disclosures. From Fix the Court: “Too Many Members of the Judicial Conference and Its Financial Disclosure Committee Haven't Posted Their Disclosures Online.” Read more here.
#3 Former Canadian Law Dean Disbarred and Fined. From CBC News: “A former University of Manitoba law dean has been given ‘the ultimate penalty’ of disbarment in Manitoba after he misspent over half a million dollars in school funds, including racking up charges that amount to fraud, the provincial law society says. Jonathan Black-Branch has been disbarred and his name has been removed from the Law Society of Manitoba's rolls of barristers and solicitors, according to a Feb. 14 decision from a law society disciplinary committee. He also was fined $36,000.” Read more here.
#4 Law Students Complain to ABA Over Mishandling of Ethics Exam. From the Toledo Blade (H/T TaxProf Blog): “University of Toledo College of Law students have filed a complaint with the American Bar Association after they were informed of a grading mistake that made some students believe they had failed a class they actually passed. Approximately 80 percent of the students in the fall 2023 legal ethics class received the wrong grade… . The error and a long delay in correcting it, as well as the lack of transparency on what happened, have upset the students who feel the university has failed to be candid with students, some of whom had already started retaking the class.” Read more here.
#5 FTX Founder Waives Conflict for New Counsel; Sullivan & Cromwell Accused of Aiding and Abetting FTX. Two headlines for #5! First, from Law.com: “In his first appearance in court since a Manhattan federal jury found him guilty of fraud and money laundering, FTX founder Sam Bankman-Fried’s new counsel said his trial attorneys Mark S. Cohen and Christian Everdell of Cohen & Gresser plan to withdraw from the case. Bankman-Fried’s new attorneys, Marc Mukasey and Torrey Young of Mukasey Young, are set to file his sentencing memorandum. Bankman-Fried, 31, appeared in court before U.S. District Judge Lewis Kaplan to waive a potential conflict of interest.” Read more here. Second, from the ABA Journal: “A proposed class action lawsuit filed by investors in cryptocurrency exchange FTX accuses Sullivan & Cromwell of aiding and abetting fraud by providing legal services that went ‘well beyond’ usual legal work. ‘As the evidence will reveal, S&C lawyers were eager to craft not only creative but misleading strategies that furthered FTX’s misconduct,’ according to the Feb. 16 suit, filed in the U.S. District Court for the Southern District of Florida.” Read more here.
#6 Concerns Over DA Willis’ Potential Disqualification Continue. From ABC News: “Over the last few weeks, Fulton County District Attorney Fani Willis, who is leading the prosecution against former President Donald Trump and his allies over alleged election interference in Georgia, has been put on the hot seat after she was accused by multiple defendants' attorneys of a conflict of interest with a fellow prosecutor. Willis and Nathan Wade admitted in court to having a romantic relationship but have contended their relationship ‘has never involved direct or indirect financial benefit’ to the DA. Legal experts told ABC News that the extra court drama will reverberate long in the court of public opinion after the judge makes his decision and will impact how the prosecution and defense present their cases.” Read more here.
#7 Family Members Not Fair Game in Litigation “Rough-and-Tumble.” From the Volokh Conspiracy: "‘Victimizing the Families of Opposing Counsel and Causing Well-Founded Concern for Their Well-Being Is a Profound Dishonor as a Lawyer.’ Lawyers in litigation may be expected to assume the risk of a certain amount of rough-and-tumble. Their families do not. In preying on the families of opposing counsel, Mr. Manookian crossed the Rubicon." Read more here.
#8 Cantil-Sakauye Discusses Judicial Ethics and More. From At the Lectern: “Former Chief Justice Tani Cantil-Sakauye recently spoke at a Contra Costa County Bar Association program called ‘Behind the Judicial Curtain and in the Robing Room.’ Video of the event is here. She began her talk with a discussion of the judiciary’s relationship with the executive and legislative branches. …Cantil-Sakauye also discussed judicial ethics (including about the Commission on Judicial Performance and the Supreme Court’s Committee on Judicial Ethics Opinions, but nothing about the U.S. Supreme Court’s problems) and the State Bar.” Read more here.
#9 Thomas Clerkship Hire Draws More Ethics Criticism. From Vanity Fair: “Scandal-plagued Supreme Court Justice Clarence Thomas isn’t doing himself any favors. Starting next term, one of his four new law clerks will be Crystal Clanton, a recently-minted law school graduate who was pushed out of a conservative youth organization in 2017 after a reporter uncovered virulently racist texts she sent to another employee.” Read more here.
#10 Above the Line Network Aims to Increase Access to Justice. From Law360: “For middle-class Americans who may make too much money to qualify for legal aid services, affording an attorney to assist with civil matters like divorces and estate planning can still be a financial impossibility. The recently launched Above The Line Network, however, is on a mission to promote cost-conscious lawyering models to put legal services within economic reach for a big and underserved middle market.” Read more here and join the Network at the link below under “Upcoming Ethics Events & Other Announcements.”
This Week in Ethics History
February 27, 1886. United States Supreme Court Justice Hugo Black was born. He joined the Supreme Court in 1937, appointed by President Franklin D. Roosevelt. Over a handful of years between 1957 and 1961, the Supreme Court took up four attorney licensure matters involving three separate petitioners and three state bar admissions processes. Black played an important role in these opinions, as chronicled by Joshua Kastenberg in his article “Hugo Black's Vision of the Lawyer, the First Amendment, and the Duty of the Judiciary: The Bar Applicant Cases in a National Security State.” Download the article here.
February 27, 1998. The American Bar Association issued Formal Opinion 410, “Lawyer Serving as Director of Client Corporation.” Here’s the summary: “The Model Rules of Professional Conduct do not prohibit a lawyer from serving as a director of a corporation while simultaneously serving as its legal counsel, but there are ethical concerns that a lawyer occupying the dual role of director and legal counsel should consider. The lawyer should reasonably assure at the outset of the dual relationship that management and the other board members understand the different responsibilities of legal counsel and director; understand that in some circumstances matters discussed at board meetings with the lawyer in her role as director will not receive the protection of the attorney-client privilege; and understand that conflicts of interest could arise requiring the lawyer to recuse herself as a director or to decline representation of the corporation in a matter.” Read the full opinion here.
March 1, 2023. The American Bar Association issued Formal Opinion 504, “Choice of Law.” Here’s the summary: “When a lawyer practices the law of more than one jurisdiction, choice-of-law questions arise concerning which jurisdiction’s ethics rules the lawyer must follow. Model Rule 8.5 provides that when a lawyer’s conduct is in connection with a matter pending before a tribunal, the lawyer must comply with the ethics rules of the jurisdiction in which the tribunal sits, unless otherwise provided. For all other conduct, including conduct in anticipation of litigation not yet filed, a lawyer must comply with the ethics rules of the jurisdiction in which the lawyer’s conduct occurs. However, if the predominant effect of the lawyer’s conduct is in a different jurisdiction, then the lawyer must comply with the ethics rules of that jurisdiction.” Read the full opinion here.
Recommended Reading — Recent Scholarship
“Lawyering in the Age of Artificial Intelligence,” by Jonathan H. Choi, Amy Monahan, and Daniel Schwarcz (all of Minnesota Law). Here’s the abstract:
We conducted the first randomized controlled trial to study the effect of AI assistance on human legal analysis. We randomly assigned law school students to complete realistic legal tasks either with or without the assistance of GPT-4. We tracked how long the students took on each task and blind-graded the results. We found that access to GPT-4 only slightly and inconsistently improved the quality of participants’ legal analysis but induced large and consistent increases in speed. AI assistance improved the quality of output unevenly—where it was useful at all, the lowest-skilled participants saw the largest improvements. On the other hand, AI assistance saved participants roughly the same amount of time regardless of their baseline speed. In follow up surveys, participants reported increased satisfaction from using AI to complete legal tasks and correctly predicted the tasks for which GPT-4 were most helpful. These results have important descriptive and normative implications for the future of lawyering. Descriptively, they suggest that AI assistance can significantly improve productivity and satisfaction, and that they can be selectively employed by lawyers in areas where they are most useful. Because these tools have an equalizing effect on performance, they may also promote equality in a famously unequal profession. Normatively, our findings suggest that law schools, lawyers, judges, and clients should affirmatively embrace AI tools and plan for a future in which they will become widespread.
“Are Lawyers’ Case Selection Decisions Biased? A Field Experiment on Access to Justice” by Jens Frankenreiter (Washington University St. Louis) and Michael A. Livermore (Virginia). From the abstract:
The lawyer-client relationship is pivotal in providing access to courts. This paper presents results from a large-scale field experiment exploring how demographic information (encoded in potential clients’ names) affects how attorneys respond to initial inquiries in private injury cases. Based on prior literature, we hypothesized that race would be a significant factor, but we also explore race and gender interactions. We find that ostensibly Black or Hispanic senders receive fewer responses than ostensibly White senders, a result largely driven by a preferential treatment of White female senders. The racial disparities are larger than those previously documented in some contexts, such as public services, but smaller than in others, such as employment. We also find suggestive evidence that White attorneys are more likely than others to treat White senders preferentially, implying that the differences in response rates are not merely a reaction to jurisdiction-level factors affecting the expected payoff of lawsuits.
Regulatory Reform Watch
Last month, the Legal Services Corporation kicked off its 50th anniversary year with a special event in Houston focusing on access to justice. One of the central topics was regulatory reform. Texas Supreme Court Justice Brett Busby delivered opening remarks calling for regulators to address the monopoly on legal services to expand access to justice, and former Texas appellate court justice Michael Massengale along with Kennon Wooton (Scott Douglass & McConnico) described the efforts of the Texas Access to Legal Services Working Group to advance reforms related to paraprofessional licensing and non-attorney ownership. Read the final report and recommendations from the Working Group here. [Full disclosure — I served as a member of the Working Group Subcommittee on Non-Attorney Ownership, and I support the Subcommittee’s recommendations.]
It’s well-worth your time to watch Justice Busby’s opening remarks (pictured above, video link here, 10 minutes) and the panel discussion with Ron Flagg (Legal Services Corporation), Massengale, and Wooton (pictured below, video link here, 30 minutes).
No final word, yet, on whether any of the Working Group’s recommendations will be officially adopted.
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, during January and February, the Accountability in our Democracy section featured nonprofit organizations working to improve lawyer and judicial ethics.
Starting next week in March, we will shift our focus again. For now, here’s an easy-to-access overview of the organizations we’ve explored for the past two months.
Roundup No. 24 - Fix the Court (Gabe Roth)
Roundup No. 25 - Responsive Law (Tom Gordon)
Roundup No. 26 - Lawyers Defending American Democracy (Gary Ratner, Cheryl Niro, and Lauren Stiller Rikleen)
Roundup No. 27 - Legal Accountability Project (Aliza Shatzman)
Roundup No. 28 - The 65 Project (Michael Teter)
Roundup No. 29 - Freedman Institute for the Study of Legal Ethics at Hofstra University Maurice A. Dean School of Law (Theo Liebmann)
Roundup No. 30 - Deborah L. Rhode Center on the Legal Profession at Stanford Law School (Lucy Ricca)
Get Hired
Did you miss the 80+ job postings from previous weeks? Find them all here.
Chief Ethics Counsel, US National Credit Union Administration — Alexandria, VA. Serve as the chief ethics advisor to the Chairman, NCUA Board and senior NCUA leadership. Learn more here.
General Attorney, Office of the General Counsel — Ethics Division, US Department of Health and Human Services — Washington DC. Responsible for the management and operation of the HHS federal sector ethics program as well as providing legal advice and services on matters relating to federal criminal conflicts of interest statutes, federal and HHS standards of ethical conduct regulations, and more. Learn more here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
Interested in responsible, ethical, and safe use of AI in legal services? Join a cross-industry group of leaders (judiciary, corporations, law firms, tech providers, access to justice orgs, etc.) to support the responsible, ethical, and safe use of AI to advance the practice of law and delivery of legal services to all? Sign up for the newly-launched RAILS (Responsible AI in Legal Services) from the Duke Center on Law & Technology. Join RAILS here.
Interested in working with others to expand on successful middle class-focused legal services and access to justice efforts? Join the newly-launched Above the Line Network, a joint project of the Institute for the Advancement of the American Legal System at the University of Denver and the Chicago Bar Foundation. Join the Network here.
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 1 — 30th Annual Ethics Symposium: Lawyer as an Advocate, hosted by South Texas Law Review, 9AM-5:30PM. This symposium will provide attendees with insights on the ethical considerations in developing areas of advocacy. More details here.
March 6 & April 10 – The Role of the Legal Profession in a Time of Crisis, co-hosted by the Freedman Institute for the Study of Legal Ethics at Hofstra Law School and the Stein Center for Law and Ethics at Fordham Law. This two-part series will feature Ray Brescia’s new book Lawyer Nation: The Past, Present, and Future of the American Legal Profession in conversation with my new book Law Democratized: A Blueprint for Solving the Justice Crisis. Both events are from 6:10-8PM on Zoom, with the second on April 10. Register here. And get 30% off plus free shipping if you order both books from NYU Press – use discount code NYUP30. Other speakers include Deborah Enix-Ross (Debevoise), Dan Rodriguez (Northwestern), James Sandman (Penn), and Ellen Yaroshefsky (Hofstra) for March 6; and Bruce Green (Fordham), Harold Koh (Yale), Becky Roiphe (NYLS), and Steve Younger (Nixon Peabody) for April 10.
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. This trial will be live-streamed on YouTube, and is scheduled for March 26-29 and April 1-5.
March 27 — “Taylor Swift is a Genius. Even About Legal Ethics.” Tennessee Bar Association. From the program description: “Everyone knows that Taylor Swift is a music genius. But she’s made some pretty smart moves in the courtroom too. Join the CLE Performer, Stuart Teicher, Esq., as he talks about how the ethics rules are invoked in some of Taylor Swift’s run ins with the legal system.” Learn more and register at this link. (Not a Swiftie? Check out his archived webinar on legal writing “From Bach to Beyonce” here)
May 27 — Submissions Due for International Association of Legal Ethics Deborah Rhode Prize for Early Career Scholars. Submissions are invited on any topic in the field of legal ethics. Papers must have been published or accepted for publication as an article in a journal or chapter in an edited book since the last prize announced at the International Legal Ethics Conference 2022. More details here.
July 17-19 — International Legal Ethics Conference, University of Amsterdam. Registration opens March 14. More details here.
Wisdom for the Week
“Those who say it can’t be done are usually interrupted by others doing it.” — James Baldwin, Notes of a Native Son (1955)
Catch Up
Here’s a list with links to some of 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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