LER No. 32 - Sex Harassment @ Legal Tech "Coachella," Threats to Judges/Prosecutors, Willis DQ Hearing Closes, NC UPL Challenge, New Prosecutor Task Force, Ethics in AI, Events, Jobs & More (03.04.24)
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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Hello from Arizona State University, where I was honored to be the keynote speaker for the Access to Justice and the Future of Justice Work Conference last week, sponsored by ASU, the American Bar Foundation, and Frontline Justice. It was a terrific event hosted by Rebecca Sandefur (ASU) along with Matthew Burnett (ABF). Learn more here.
It’s March, which means happy Women’s History Month! For the next four weeks, the “This Week in Ethics History” section (below) will celebrate the amazing accomplishments of women in law and legal ethics. And this month is a reminder to reflect on the countless untold stories of women who paved the way for others, including those shortlisted for the U.S. Supreme Court before Sandra Day O’Connor was nominated by President Ronald Reagan in 1981. I talk about them in this C-SPAN interview with Susan Swain.
Read more about the shortlisted sisters here. And now, time for the headlines.
Highlights from Last Week - Top Ten Headlines
#1 Unprecedented Threats of Violence Faced by Judges and Prosecutors. From Reuters: “Judges and prosecutors are facing repeated threats of violence as they handle cases related to Trump, interviews and documents reveal. The wave of intimidation follows the ex-president’s attacks on judges as corrupt and biased – and some worry it threatens America’s long tradition of judicial independence.” Read more here.
#2 “Coachella” of Legal Tech Faces “a #MeToo Moment.” From NPR: “Women report sexual harassment at glitzy legal tech events in a #MeToo moment … Stefanie Bier was looking forward to catching up with friends working in legal technology when she headed to dinner near the glitzy Legalweek conference in New York City in late January. But by the end of the night, her group was reporting an alarming incident that sent shock waves through their industry. … Since the conference ended in early February, many women have taken to social media, detailing precarious and threatening situations they were forced to navigate in between the conference's speeches, vendor events, receptions and private parties. … This year's edition of Legalweek was held from Jan. 29 to Feb. 1 at the New York Hilton Midtown. It's considered one of, if not the, biggest conferences within the industry, according to lawyers and legal tech professionals who spoke to NPR for this story. … Deeanna Fleener, a vice president at Deloitte, also shared a litany of harassment stories in a LinkedIn post that sparked widespread interest — and that prompted a flood of responses from women who said the accounts were neither rare nor limited to the conference in New York.” Read more here. (It’s been more than a decade since I attended a Legalweek conference, but I can say that I experienced similar behavior then. I’m saddened/outraged/unfortunately not surprised that it continues.)
#3 Willis DQ Saga Continues. Three headlines for #3! First, from The Hill: “Attorneys for former President Trump and his Georgia co-defendants made their final pitch Friday to disqualify Fulton County, Ga., District Attorney Fani Willis (D), attacking her credibility and motives given her romantic relationship with a top prosecutor. After listening to three hours of legal arguments, Judge Scott McAfee indicated he hoped to issue a ruling in the next two weeks.” Read more here. Second, from Anthony Michael Kreis (Georgia State Law) in an Atlanta Journal-Constitution op-ed: “The conflict-of-interest allegations against Fulton County District Attorney Fani Willis in the election-interference case against Donald Trump and 18 co-defendants have always been thin on evidence but never short on drama.” Read more here. Third, in perhaps the strangest twist yet in this case, from the New York Times: “Terrence Bradley, an Atlanta-area lawyer, had been billed as the star witness in the effort to disqualify Fani T. Willis … . But when Mr. Bradley took the stand this week — and twice earlier this month — he was a deeply reluctant witness. … [H]undreds of text messages obtained by The New York Times show that Mr. Bradley … helped a defense lawyer to expose the relationship between the two prosecutors. … Ultimately, it will be up to the judge to assess the credibility of Mr. Bradley, and determine whether the text messages bolster the case for disqualifying the prosecutors.” Read more here.
#4 Must-Listen Mashup. Two of my favorite lawyer podcasts collided last week with Jonah Perlin (Georgetown Law) of How I Lawyer hosting Karen Delaney and Jennifer Judge of Lawyers Behaving Badly. LER regulars have seen all three featured as lawyers of the week for their excellent podcasts (see Roundup No. 6 for Perlin and Roundup No. 10 for Delaney/Judge), and now you can hear them in conversation together about the legal profession. Listen here (51 min).
#5 Prosecutors Respond in Former President’s Mishandling of Classified Documents Case. From Law360: “The special counsel's office prosecuting Donald Trump's criminal case on mishandling classified documents told the Florida federal judge overseeing the case on Friday that his attorneys don't have a viable claim challenging the origins of the prosecution team, arguing that intelligence agencies had no role in determining the charges against the former president. David Harbach of the special counsel's office, representing the U.S. government, told U.S. District Judge Aileen Cannon in Fort Pierce federal court that no member of the intelligence community collaborated with his team on what charges should be levied against Trump and his two co-defendants, Walt Nauta and Carlos De Oliveira, and that the judge should deny an evidentiary hearing on the defense's attempt to learn about the scope of the prosecution team.” Read more here.
#6 North Carolina UPL Challenge. From Reuters: “North Carolina Attorney General Josh Stein on Monday urged a court to reject a lawsuit by a nonprofit that sued to bar the state from enforcing unauthorized legal practice rules against it. Stein argued in the motion to dismiss that his office has no role in enforcing the unauthorized practice rules at the heart of the lawsuit.The North Carolina Justice for All Project and two paralegals sued Stein's office last month, claiming that the state's prohibition on unauthorized practice of law imperils their plan to provide free and paid ‘simple’ legal advice to North Carolinians about how to fill out court-created legal forms in areas such as domestic violence, child custody and small estate administration.” Read more here.
#7 Senator’s Q&A for Judicial Nominees Questioned. From Bloomberg Law: “Fifteen lawyers sit on the Senate Judiciary Committee, but John Kennedy manages to get inside the heads of judicial nominees with his questions like nobody else. The Louisiana Republican with a southern drawl and a former law professor’s Socratic method likes to pose questions about legal doctrines and courtroom procedure that have tripped up nominees from both parties. … Detractors say Kennedy’s quizzes don’t reflect the realities of what it means to preside over a case as a judge or even practice the law generally.” Read more here.
#8 New 10% Rule for Federal Judge Financial Disclosures. From Reuters: “A federal judge who invests in a publicly-traded company or a mutual fund that owns as little as a 10% stake of a party in a lawsuit may still have to be recused from presiding over the case, according to a new judicial ethics opinion. The U.S. Judicial Conference's Committee on Codes of Conduct on Monday revised an earlier advisory opinion to strengthen the requirements governing recusals by judges involving parent-subsidiary relationships between companies.” Read more here. (This is the latest response to Congressional hearings after the Wall Street Journal exposed more than 100 judges not complying with financial disclosure rules in 2021. For more on that, including my testimony before the House Judiciary Committee, see Roundup No. 7.)
#9 What to Do About the Courts? From Salon: “While the electoral backlash against Dobbs has been heartening, that's essentially a reaction to the most alarming and personally invasive Supreme Court decision, not a proactive effort to dismantle the source of the threat.That's why the new online lecture and discussion course, ‘What to Do About the Courts,’ feels so important: It's an effort to begin laying the groundwork for fundamental court reform. It’s a collaboration between the Law and Political Economy Project and the People’s Parity Project.” Read more here.
#10 Sanctions for Being Too “One-Sided.” From the ABA Journal: “Gibson, Dunn & Crutcher went too far when it used the facts section of an appellate brief to present ‘a one-sided narrative’ that downplayed adverse findings against its client, according to an appeals court. The California Court of Appeal’s Fourth Appellate District criticized Gibson Dunn in an opinion that reduced a $22.3 million award against Zovio Inc. and Ashford University, an online school that is owned by Zovio.” Read more here.
This Week in (Women’s!) Ethics History
March 1, 1953. The first woman to serve as an Article I federal judge, Genevieve Cline, retired from the bench as a member of the United States Customs Court. She was appointed by President Calvin Coolidge, taking office May 26, 1928.
March 1, 1968. The first woman appointed as a U.S. District Court judge, Burnita Shelton Matthews, assumed senior status on the U.S. District Court for the District of Columbia. She was appointed by President Harry Truman, taking office October 21, 1949.
March 4, 1982. Bertha Wilson became the first woman to serve on the Supreme Court of Canada, where she served until January 4, 1991.
March 10, 1996. U.S. Supreme Court Justice Ruth Bader Ginsburg spoke at Hofstra University Law School about the question of ethics in lawyer-client relations. Watch here.
Recommended Reading — Recent Articles
The recommended reading for this week focuses on AI for lawyers and judges, inspired in part by a recent exchange among several law professors on the AALS Section on Professional Responsibility listserv, one of the more heated debates (maybe the only debate?!?) I’ve seen there in years. Both of these pieces offer important insights. For past LER coverage on generative AI and ethics rules, see Roundup No. 9 (judges) and Roundup No. 13 (lawyers).
“The Legal Ethics of Generative AI,” by Andy Perlman (Suffolk Law). From the abstract:
The legal profession is notoriously conservative when it comes to change. From email to outsourcing, lawyers have been slow to embrace new methods and quick to point out potential problems, especially ethics-related concerns.
The legal profession’s approach to generative artificial intelligence (generative AI) is following a similar pattern. Many lawyers have readily identified the legal ethics issues associated with generative AI, often citing the New York lawyer who cut and pasted fictitious citations from ChatGPT into a federal court filing. Some judges have gone so far as to issue standing orders requiring lawyers to reveal when they use generative AI or to ban the use of most kinds of artificial intelligence (AI) outright. Bar associations are chiming in on the subject as well, though they have (so far) taken an admirably open-minded approach to the subject.
Part II of this essay explains why the Model Rules of Professional Conduct (Model Rules) do not pose a regulatory barrier to lawyers’ careful use of generative AI, just as the Model Rules did not ultimately prevent lawyers from adopting many now-ubiquitous technologies. Drawing on my experience as the Chief Reporter of the ABA Commission on Ethics 20/20 (Ethics 20/20 Commission), which updated the Model Rules to address changes in technology, I explain how lawyers can use generative AI while satisfying their ethical obligations. Although this essay does not cover every possible ethics issue that can arise or all of generative AI’s law-related use cases, the overarching point is that lawyers can use these tools in many contexts if they employ appropriate safeguards and procedures. Part III describes some recent judicial standing orders on the subject and explains why they are ill-advised. The essay closes in Part IV with a potentially provocative claim: the careful use of generative AI is not only consistent with lawyers’ ethical duties, but the duty of competence may eventually require lawyers’ use of generative AI. The technology is likely to become so important to the delivery of legal services that lawyers who fail to use it will be considered as incompetent as lawyers today who do not know how to use computers, email, or online legal research tools.
“New Court Rules For AI: Stop The Insanity,” by David Lat (Original Jurisdiction). Here’s an excerpt:
At this early stage, lawyers and judges have only a limited sense of how AI will affect the practice of law or the enterprise of judging. It would therefore be wise to pause and gather more data before taking action. But some judges are falling all over themselves to create AI-specific orders, rules, and disclosure requirements.
At least 21 federal trial judges have already issued standing orders regarding AI, according to Bloomberg Law. The Fifth Circuit is considering a proposal that would require attorneys to confirm that they checked the accuracy of AI-generated material. The Ninth Circuit has created an AI committee that could end up proposing AI-related rules, and so has the Third Circuit. State courts are convening AI committees as well.
I have a simple message for judges who are thinking about adopting AI-specific orders and rules.
Just. Say. No.
Regulatory Reform Watch
Task Force for Prosecutorial Independence Launched. From the ABA press release: “The Criminal Justice Section of the American Bar Association today announced the creation of the Task Force for Prosecutorial Independence to preserve and strengthen prosecutorial independence and enhance the American public’s understanding of the prosecutor’s critical role in maintaining the integrity of the criminal justice system.” Read more here. The new task force is co-chaired by John Choi (attorney for Ramsey County, Minnesota), Ellen S. Podgor (Stetson Law), and Ellen Yaroshefsky (Hofstra Law).
New ABA Formal Opinion 509 Released — Disqualification to Prevent the Misuse Use of “Confidential Government Information.” From the ABA press release: “The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion today that provides guidance on how disqualification rules apply to both current and former government lawyers under the ABA Model Rules of Professional Conduct.
Formal Opinion 509 interprets Model Rule 1.11, which relates to the conflict-of-interest provisions applicable to currently serving and former government employees and officers who are also lawyers. … ‘(The rule) applies to a lawyer who acquired confidential government information while the lawyer was employed by or an official of the government, regardless of whether the lawyer seeking to represent the private client has now left government employ or office or maintains a private law practice (e.g., a part-time practice) while still in government employ or office,’ the opinion added. ‘The rule applies to the representation of a ‘private client,’ which can be any client represented in the lawyer’s private practice that is not legally entitled to use the confidential government information in question.’” Read more here, and download Formal Opinion 509 here.
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. During January and February, the Accountability in our Democracy section featured nonprofit organizations working to improve lawyer and judicial ethics. For an easy-to-access overview, see Roundup No. 31.
This week, I want to highlight two new initiatives launched in early 2024 that address ethics reforms in different but important ways.
The first is RAILS (Responsible AI in Legal Services) from the Duke Center on Law & Technology, founded by Jeff Ward who directs the Center. This effort consists of a cross-industry group of leaders (judiciary, corporations, law firms, tech providers, access to justice orgs, etc.) who are committed to supporting the responsible, ethical, and safe use of AI to advance the practice of law and delivery of legal services to all. Learn more here.
The second is a joint project between the University of Denver’s Institute for the Advancement of the American Legal System and the Chicago Bar Foundation called the Above the Line Network. This effort is focused on expanding access to justice to the middle class, specifically those who do not qualify for legal aid but cannot afford legal services. This week they are hosting a free webinar featuring Roya Samarghandi (Chicago Bar Foundation), Jessica Bednarz (IAALS), Bill Henderson (Indiana Law), Daniel Hernandez (NextLevel Law), and Gabby Majewski (DC Affordable Law Firm). Learn more and register here.
Get Hired
Did you miss the 90+ job postings from previous weeks? Find them all here.
Conflicts Attorney, Haynes & Boone — Charlotte, Dallas, Denver, San Francisco, Palo Alto, remote. Responsibilities include analyzing conflicts of interest issues independently relating to new firm business, lateral attorneys, new staff, and potential merger candidates; drafting conflict waivers and ethical walls as needed to resolve potential conflicts of interest; advising attorneys regarding ethical obligations relating to conflicts of interest and other issues covered by the Rules of Professional Conduct; and more. Learn more here.
Conflicts & Ethics Attorney, King and Spaulding — numerous locations/remote. Review 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. Two openings. Learn more here and here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all 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 8 — Transform: Justice at Harvard Law School. A celebration of the full, unqualified release of the data from the Caselaw Access Project will be the anchor of an event focused on the future of the access to law movement. Speakers across government, academia, and industry will sketch out the opportunities ahead of us for expanding access to legal data and its waterfall effects across society and justice. Speakers include: Jonathan Zittrain (Harvard), Adam Ziegler (TrueLaw), Nik Reed (Knowable), Daniel Lewis (LegalOn), and others More information 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. 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
“My hopes and plans for the future? To know my own mind.” — Susie Sharp, the first female justice on the North Carolina Supreme Court and the first woman elected as chief justice of any state supreme court
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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