LER No. 34 - Public Distrust, (Lack of) Disclosures, Judge Shopping, No Conflict So Willis Remains (But Without Wade), Women’s Ethics History, Jobs, Events & More (03.18.24)
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
Thank you for being here. Welcome to what captivates, haunts, inspires, and surprises me every week in the world of legal ethics.
Each week the Legal Ethics Roundup is viewed by more than 1,500 readers across the United States and in 29 different countries. Subscribers include judges, lawyers, professors, state bar administrators, students, government officials, and people who care about the future of our democracy.
If you haven’t subscribed, take a moment now to sign up at the link below. It’s free! And you’ll never miss the latest edition. Please also consider becoming a paid subscriber, which helps to support this weekly newsletter and unlocks special bonus content, along with the ability to post comments.
Welcome to New York! It’s been waitin’ for you. (And me!) I was in NYC this past week to speak at the Cardozo Law School Symposium on Ethics in the Judiciary and the Legal Profession. Other speakers included: Melissa Murray (NYU), Richard Painter (Minnesota), James Sample (Hofstra), Sung Hui Kim (UCLA), Rebecca Roiphe (New York Law), W. Bradley Wendel (Cornell), Deborah Pearlstein (Princeton), Robert Howse (NYU), and Daniel Richman (Columbia). Congressman Daniel Goldman, who led the impeachment of the former president, delivered the keynote. Special thanks to Tony Sebok (Cardozo) and Jessica Roth (Cardozo) for putting together such a great program along with the Cardozo Law Review staff.
I head back to NYC in early April for another talk. (More on that below under Ethics Announcements/Events.) In the meantime, a recording of the talk I gave about Law Democratized for an event hosted by Hofstra Law School’s Freedman Institute of Legal Ethics and Fordham Law School’s Stein Center for Law and Ethics earlier this month is now available here. Other speakers for that event included Ray Brescia (Albany Law), Deborah Enix-Ross (Debevoise), Dan Rodriguez (Northwestern), James Sandman (Penn), and Ellen Yaroshefsky (Hofstra).
Now onto the headlines…
Highlights from Last Week - Top Ten Headlines
#1 “Sorry State of Disclosure: How State Supreme Court Justices Hide Finances and Perks from the Public.” From Fix the Court: “Most states are shielding critical information about their supreme court justices from the public, either by making disclosures hard to obtain or by requiring scant information to be disclosed. In short, 24 of the 48 states that require annual judicial disclosures don’t post their justices’ reports online, and 28 of 48 require less information to be disclosed than what the federal judiciary requires. (Idaho and Utah don’t require judicial disclosures.)” Read more here.
#2 Limits on Judge Shopping in Federal Court. From Bloomberg News: “The US judiciary’s policy arm issued guidance to courts encouraging federal judges to assign all civil cases in a way that limits judge-shopping. The Judicial Conference late Friday followed up on its policy announcement on March 12 that it says strengthens its case assignment procedures. The new policy would randomly assign lawsuits seeking to block a state or federal action to any judge within the court. It aims to prevent litigants seeking to select a preferred judge from filing requests for nationwide injunctions in single-judge divisions. The announcement … quickly drew criticism for appearing to focus on political cases and to exclude patent and bankruptcy cases, two areas that have long drawn concerns about venue-shopping. The guidance to federal judges and court staff on Friday spelled out how judges could promote random case assignment. The guidance encouraged them to adopt practices that limit judge-shopping for ‘all civil cases, including patent cases.’” Read more here.
#3 DA Fani Willis Remains After Judge Rules on Conflict Allegations. From the Atlanta Journal-Constitution: “Special prosecutor Nathan Wade resigned from the Fulton County election interference case on Friday afternoon, hours after a judge ruled that either he or District Attorney Fani Willis had to withdraw for the prosecution of Donald Trump to move forward.” Read more here.
#4 Bar Exam No Longer Required in Washington State. From the Spokesman-Review: “The bar exam will no longer be required to become a lawyer in Washington, the state Supreme Court ruled in a pair of orders Friday. The court approved alternative ways to show competency and earn a law license after appointing a task force to examine the issue in 2020. The Bar Licensure Task Force found that the traditional exam ‘disproportionally and unnecessarily blocks’ marginalized groups from becoming practicing attorneys and is ‘at best minimally effective’ for ensuring competency, according to a news release from the Washington Administrative Office of the Courts.” Read more here. And check out Joan Howarth’s (UNLV) excellent book about bar exam reforms if you want to learn more about similar efforts.
#5 New Penn Study Documents Public’s Lack of Trust for SCOTUS. From Penn Today: “For decades, the U.S. Supreme Court was viewed as one of the few American institutions respected by Democrats and Republicans alike. It was seen as a legal institution, not a political one, strengthened by its ‘norms, processes, symbols, and independence’ – and was granted greater public trust and legitimacy than most other institutions. But that privileged status is no more. New research led by the Annenberg Public Policy Center of the University of Pennsylvania finds that the court’s ‘special status has evaporated’ and that the court’s dramatic shift to the right, capped by the 2022 ruling in Dobbs v. Jackson Women’s Health, has upended that favored relationship and polarized the public’s view of the court along partisan lines for the first time in decades.” Read more here.
#6 FINRA Regulation of Non-Attorney Arbitration Rule Reform. From Ben Edwards (UNLV) at Business Law Prof Blog: “For a long time, compensated non-attorney representatives (NARs) have been a blight on FINRA's securities arbitration forum. … If an incompetent attorney botches a case, the client has a claim for malpractice. When an incompetent NAR does the same, the client cannot bring a professional malpractice claim because the NAR owes no professional ethical duties. Hopefully, the SEC will allow the rule change to go into effect.” Read more here.
#7 Law Dean News — Retaliation and Hiring. Two headlines for #7, both courtesy of TaxProf Blog. First, “After Settling Lawsuit For $160,000, University Of Colorado Investigation Finds Law School Dean Retaliated Against Tenured Professor.” Read more here. Second, “Provost Says Former Mayor Is 'Preferred' Memphis Law Dean Candidate, Seeks Faculty Input Via 2-Question Email. … The email sent to faculty members of the law school stated that Strickland would not be seeking a typical tenured position as dean.” Read more here (including a link to ABA Accreditation Standard 203 requiring tenure status for a dean except in “extraordinary circumstances”).
#8 “Can I charge my client for time spent responding to my client’s disciplinary complaint?” From David Kluft (Massachusetts Office of Bar Counsel) on LinkedIn: “Please don’t. A VA lawyer responded to the VA bar after a client filed an ethics complaint against him. The lawyer sent his client a $1,890 bill for his time responding to the bar, and then filed suit against the client for the unpaid bill. The VA Bar ethics hotline told him this was not OK, but apparently could not cite specific case precedent in VA. Well, now they can. Public reprimand for unreasonable fee.” Read more here (with link to the Virginia opinion).
#9 New Memoir Out from Dr. Blasey Ford. From CBS News: “In September 2018, Dr. Christine Blasey Ford, a psychology professor at Palo Alto University in California, and a mother of two, alleged that Brett Kavanaugh, who was then a nominee for a Supreme Court seat, had sexually assaulted her in the summer of 1982 when she was 15 and he was 17. Her testimony during his confirmation hearings, watched by nearly 10 million cable viewers, drew strong reactions in the context of the #MeToo movement. In her new memoir, ‘One Way Back’ (published March 19 by St. Martin's Press), Blasey Ford writes about the responses she received, from support by survivors of sexual assault, to death threats directed at her and her family.” Read more here.
#10 Lindke v. Freed Opinion on Social Media Released. From CNN: “The Supreme Court ruled Friday that public officials may block people on social media in certain circumstances, tossing aside challenges against local government officials in Michigan and California who blocked followers who were critical of them on Facebook. In a unanimous opinion written by Justice Amy Coney Barrett, the court set a clearer standard for when public officials are state actors online and when they can have more control over their social media presence.” As noted in Bonus Content No. 3, this case impacts lawyers and judges who hold offices as public officials in their use of social media.
This Week in (Women’s!) Ethics History
March 19, 1911. The first International Women’s Day was observed.
March 22, 1972. The U.S. Senate approved the Equal Rights Amendment.
March 23, 1884. Florence Allen was born. She was the first woman to serve on the Ohio Supreme Court and on a federal appellate court, appointed by President Franklin D. Roosevelt to the U.S. Court of Appeals for the Sixth Circuit in 1934. She was also the first woman to be named on a president’s shortlist for the U.S Supreme Court.
Recommended Reading — Recent Scholarship
This week’s recommended reading focuses on judicial ethics. Both pieces are 🔥🔥🔥
“Supreme Impropriety? Questions of Goodness and Power,” by Veronica Root Martinez (Duke Law). From the abstract:
On November 13, 2023, for the first time in history, the justices of the United States Supreme Court formally adopted a code of conduct. The adoption of the code occurred after over a decade of calls to do so from policymakers, members of Congress, academics, and the public. The new code of conduct, however, was immediately critiqued as being inadequate, insufficient, and imprecise. After so many pleas for the Court to adopt an ethics code, and it having finally done so, some may find surprising that the enacted code has been so quickly critiqued by the very people who asked the Court to take action. These debates, however, were never about a code.
Underneath all of the arguments—and there have been many—about the Supreme Court and its lack of an ethics code have been concerns about goodness and power. The goodness concerns, at least in part, appear to be related to how the public—and Congress—would know whether the justices are conducting themselves in a manner that befits the office they hold. The power concerns, at least in part, appear to be rooted in the reality that for the public to verify that the justices’ actions align with goodness, the justices would have to relinquish some of their own, individual power. The justices would have to agree to submit. To submit to a code. To submit to a Congressional inquiry or mandate. To submit to the other members of the Court. To submit to someone or something other than themselves. And the reality is that asking a powerful person to give up some of their power is almost always a fraught endeavor.
This Article argues that the current controversies surrounding the ethics of Supreme Court justices will not be satisfied unless and until there is a mechanism in place for the public to objectively assess the goodness of the justices’ actions and conduct. Assessments of this nature are not unprecedented. Indeed, scholars and the legal profession have traditionally used a range of tools to determine whether a professional’s conduct should be deemed permissible—even when a formal code of conduct is not in place—and these tools may be instructive in the current debates. Ultimately, this Article argues that an intervention needs to be adopted that will provide guidance on whether current or contemplated conduct by a Supreme Court Justice complies with formal (legal) or traditional (standards or norms) notions of judicial ethics. This Article proposes one such intervention, but there could be others. The key is that the methods for evaluating the justices conduct are (i) objective, clear and precise; (ii) free from ideological taint; and (iii) consistently replicable across new permutations of potential misconduct.
“Off the Record: Transparency Challenges in Judicial Misconduct and Discipline,” by Sarah Cravens (Washington & Lee Law). From the abstract:
This article highlights ways in which matters conducted “off the record” lead to an array of challenges in the regulation of judicial misconduct and the effective imposition of judicial discipline to achieve its desired ends. The article looks at the challenges associated with bringing forward legitimate complaints when judges have engaged in misconduct that is not captured because no record was made (at all, or temporarily, or because of a relocation into chambers, etc.). It further explores the challenge of the small number of published judicial discipline opinions, relative to the greater amount of private discipline imposed – “off the record,” so to speak – despite the fact that the majority of states look to the public for participation in selection of their judges. The article argues for more transparency in these and related areas of judicial ethics and discipline in order to improve not only the substantive reality, but also the public confidence in the conduct of those on the bench.
Legal Ethics in Popular Culture (Women’s History Month Version)
In honor of Women’s History Month, here are a few recommendations:
Mrs. America is a miniseries from FX starring Cate Blanchett as Phyllis Schlafly, the lawyer who led the movement to defeat the Equal Rights Amendment and Niecy Nash as Flo Kennedy, a lawyer, feminist, and civil rights advocate who co-founded the National Women's Political Caucus. As this NYT Review states: “Packed with stunning performances, the limited series tells a sweeping story of women’s rights revolutionaries — and a formidable counterrevolutionary.”
Two films about the late U.S. Supreme Court Justice Ruth Bader Ginsburg are worth watching. This NYT review covers both the movie On the Basis of Sex starring Felicity Jones and written by Ginsburg’s nephew Daniel Stiepleman as well as the Oscar-nominated documentary film RBG.
And don’t forget The Law According to Lidia Poët, a six episode series from Netflix based upon the real-life first female lawyer in Italy. Revisit Roundup No. 28 for more about it.
Last, but not least, check out the new billboard that went live in Times Square last week for the always-informative Strict Scrutiny podcast which, while devoted to SCOTUS and constitutional law, often delves into legal ethics issues. Congrats to Leah Litman (Michigan), Melissa Murray (NUY), and Kate Shaw (Penn), who are making history…I’m pretty sure they are the first law professors to see their podcast lighting up the Big Apple!
Accountability in our Democracy
This part of the Roundup focuses on the legal profession’s accountability in our democracy. New posts under this section will resume soon. For a recap of past topics covered, head back to Roundup No. 21. During January and February 2024, 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.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Conflicts Attorney, Taft Stettinius & Hollister — Cincinnati, Cleveland, Columbus, Dayton, Detroit, Indianapolis or Minneapolis. Review, analyze and articulate conflicts search results for new business and lateral hires. Identify potential conflict issues and determine appropriate steps for resolution. Learn more here.
Ethics Counsel, State Bar of Michigan — Lansing. Responsible for helping to guide and educate attorneys, judges, and law students regarding their ethical obligations under the Michigan Rules of Professional Conduct and the Michigan Code of Judicial Conduct. Learn more here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all 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)
April 4 — Book Talk on Access to Justice and Ethics, NYU Law School Center for Race, Inequality and the Law, 6:30-8:20PM. This event brings together my book Law Democratized: A Blueprint for Solving the Justice Crisis in conversation with three others about access to justice and ethics, including Ray Brescia (Albany) Lawyer Nation: The Past, Present, and Future of the American Legal Profession; Sateesh Nori (NYU) Sheltered: Twenty Years in Housing Court; and Jane M. Spinak (Columbia) The End of Family Court: How Abolishing the Court Brings Justice to Children and Families. Register here.
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 is the second session in a two-part series featuring Ray Brescia’s book Lawyer Nation: The Past, Present, and Future of the American Legal Profession in conversation with my book Law Democratized: A Blueprint for Solving the Justice Crisis. Event is 6:10-8PM on Zoom. Register here. And get 30% off plus free shipping if you order both books from NYU Press – use discount code NYUP30. Speakers include Bruce Green (Fordham), Harold Koh (Yale), Rebecca Roiphe (NYLS), and Steve Younger (Nixon Peabody) for April 10.
April 19-20 — Workshop on Professional Identity Formation in the Professional Responsibility Course at the University of St. Thomas School of Law, Minneapolis. The Holloran Center for Ethical Leadership in the Professions, in conjunction with casebook publishers, is sponsoring a workshop on incorporating professional identity formation into professional responsibility courses, including how professors primarily focused on preparing students for the MPRE can still easily incorporate professional identity into their teaching. I’ll be there, along with other casebook authors including Barbara Glesner Fines (UMKC), Bruce Green (Fordham), Peter Joy (Washington University St. Louis), Jon Lee (Maine), Carol Needham (St. Louis), and Paula Schaefer (Tennessee). For more information, email Felicia Hamilton at hami3258@stthomas.edu.
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.
May 29-June 1 — 49th Annual ABA National Conference on Professional Responsibility, Denver. The National Conference on Professional Responsibility is the annual educational and networking event for lawyers who represent, prosecute, advise, and educate other lawyers on issues of ethics, discipline, professionalism, and more. I’ll be speaking on May 30 about hot topics in legal ethics along with Matthew Corbin (Aon) and Hope Todd (DC Bar). More details here.
July 17-19 — International Legal Ethics Conference, University of Amsterdam. Registration now open. More details here.
Wisdom for the Week
“Women belong in all places where decisions are being made. It shouldn't be that women are the exception.” — U.S. Supreme Court Justice Ruth Bader Ginsburg
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
Did a brilliant colleague forward this to you? If so, subscribe now to get the next Legal Ethics Roundup delivered directly to your in-box.