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
Thank you for being here. Welcome to what captivates, haunts, inspires, and surprises me every week in the world of legal ethics.
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Women Vote Mural, Austin, TX (photo by Renee Jefferson)
For our last LER weekly roundup during Women’s History Month, here’s a photo I captured of “Women Vote,” the largest mural in Austin, Texas. From the Austin Chronicle: “The 100-foot-tall mural, completed in just five days, is a collaboration between French Canadian artist Sandra Chevrier and Shepard Fairey of ‘Obey Giant’ fame – he also created the iconic Obama ‘Hope’ poster from the 2008 presidential campaign. Both artists were invited by the Downtown Austin Alliance Foundation to take part in a weeklong series commemorating the 100th anniversary of the 19th Amendment, which gave women the right to vote. But not all women: Native American, African American, and women from certain minority groups faced obstacles for years to come, a legacy which can arguably still be felt today.” Read more about the mural, which debuted in 2020, here.
#1 With Conflict Cleared, DA Willis Says “Train is Coming” for Former President; Meanwhile Congresswoman Wants Her Disbarred. Two headlines for #1! First, from the Guardian: “The Georgia prosecutor overseeing Donald Trump’s election interference case in that state promised Saturday that ‘the train is coming for him’ despite defense efforts to derail her office’s pursuit of charges against the former president and nearly two dozen co-defendants. Fulton county district attorney Fani Willis’s remarks came after a court challenge centering on a romantic relationship that she had with a special prosecutor whom she appointed to the case, Nathan Wade. … But some questioned her decision to speak to the media after the intense attention around her personal decisions around the case have come close to derailing it entirely. In a series of posts on X, Georgia State University law professor Anthony Michael Kreis, who’s been following the case against Trump, noted that [Judge] McAfee had previously threatened to impose a gag order on Willis.” Read more here. Second, from Bloomberg: “Marjorie Taylor Greene Moves to Disbar Fani Willis.” Read more here.
#2 New ABA Opinion on “Reasonable Measures” To Avoid Imputed Conflicts. From the ABA Journal: “An ethics opinion released Wednesday by the ABA’s Standing Committee on Ethics and Professional Responsibility addresses what constitutes ‘reasonable measures’ personally disqualified lawyers can take to ensure that the conflicts of interest are not imputed to their law firms. Formal Opinion 510 focuses on when a lawyer considers a matter from ‘a prospective client’ but is ‘not retained.’” Read more here.
#3 The Ethics of Law Professor Amicus Briefs. From the Volokh Conspiracy: “The number of amicus briefs submitted by academics has increased dramatically over the past several decades. In principle, such scholars' briefs should help courts resolve difficult cases by sharing relevant expertise. Judges are necessarily generalists. Scholars in a particular field, on the other hand, may have genuine expertise about the specific issues at hand in a given case that could assist the judges in making a decision. Whatever the merits of such briefs in theory, some have raised questions about their value in practice. … If the value of an academic amicus brief is to provide academic expertise, then it would seem to me to be quite unethical for academics to sign their names to briefs that do not reflect their academic expertise.” Read more here.
#4 The Ethics of Settlements and Legal Fees. From St. Louis Today: “On the surface, it appeared that these settlements, which now total nearly $1 billion, were driven by state governments cracking down on a company that had ripped off taxpayers. But a New York Times investigation, drawing on thousands of pages of court documents, emails and other public records in multiple states, reveals that the case against Centene was conceived and executed by a group of powerful private lawyers who used their political connections to go after millions of dollars in contingency fees. … The Centene case was organized by the Mississippi-based law firm Liston & Deas along with at least three other firms, several with close ties to former Gov. Haley Barbour of Mississippi, who was once considered one of the most influential Republican power brokers in the nation. … In the Centene case, Barbour’s associations with both Centene and the private lawyers raise ‘important questions’ about who controlled the case to make sure it was pursued in the best interests of states that settled, said Kathleen Clark, a professor of legal ethics at Washington University in St. Louis.” Read more here.
#5 New Study Shows Gen AI Can Improve Access to Justice but Reveals a Gender Gap in Adoption. From Reuters: “Artificial intelligence can enhance access to justice for low-income Americans, but legal aid attorneys need better access and training on tech tools that bolster lawyer efficiency, a Berkeley Law study found. Among the legal aid lawyers who were given access to AI tools ChatGPT-4, CoCounsel, and Gavel by Berkeley, 90% said those programs increased their productivity, and 75% said they would continue to use them, according to the Center for Law and Technology at the University of California, Berkeley School of Law. The study is slated to appear in an upcoming edition of the Loyola Los Angeles Law Review. … Overall, 21% of the legal aid attorneys surveyed said they were already using AI. But the study found a significant gender gap in the adoption of AI tools — a notable finding given that 75% of legal aid attorneys are women.” Read more here.
#6 “The Law Show” Lawyer May be Disbarred in Michigan. From the Detroit News: “The Michigan Attorney Discipline Board has ruled that a Grosse Pointe Farms lawyer who spent years giving legal advice to Metro Detroit radio listeners ‘weaponized the court system’ and ‘engaged in an intentional, sustained pattern and practice of ... misconduct.’ The Discipline Board on Tuesday issued a misconduct report that looked into 12 complaints against attorney Brian Dailey — which the board said was a fraction of the complaints that have been filed over the years against the longtime former host of ‘The Law Show’ on WJR-AM (760). In the scathing 58-page report, the discipline board found Dailey repeatedly ignored requests from clients, fellow attorneys and other entities to pay money he owed them. Dailey will face punishment that could include disbarment at scheduled sanction hearings on April 15 and April 24 at the discipline board's Detroit office.” Read more here.
#7 Federal Judges Travel to Israel. From Bloomberg Law: “More than a dozen federal judges, nearly all appointed by Donald Trump, traveled to Israel to discuss the country’s legal system, military compliance with international law, and aftermath of the October attack by Hamas. The four-day trip this month sponsored by the World Jewish Congress included Patrick Bumatay and Lawrence VanDyke of the US Court of Appeals for the Ninth Circuit, DC Circuit Judge Neomi Rao, and Sixth Circuit Judge Amul Thapar, all Trump appointees. Two others nominated by Barack Obama and George W. Bush also made the trip. … Duke University law professor Veronica Root Martinez, who specializes in legal ethics, said that as long as the judges disclose travel as legally required, the visit looks like ‘a learning trip that does not run afoul of the code of conduct’ for federal judges.’” Read more here.
#8 Judges’ Diversity Policies Rescinded in Illinois. From Reuters: “Three federal judges in Illinois have rescinded policies giving women and minority lawyers early in their careers more opportunities to argue cases in court that had become the subject of misconduct complaints by two conservative legal groups.” Read more here. (For past coverage, see LER No. 28, Headline #8.)
#9 The Ethics of Court Appointments - “Juvenile Cases are a Big Business.” From The Marshall Project: “The juvenile court system is supposed to ensure that young people accused of crimes have legal representation, even if their families can’t afford a lawyer. But in Cuyahoga County, some courtrooms resemble hiring halls for favored attorneys who get hundreds of assignments yearly, while others get none. … For more than four decades, the American Bar Association has said court appointments should not be made by judges to ensure attorneys are loyal to their clients and not the people giving them work. … Many attorneys say no matter how much you hustle, case assignments boil down to friendships, politics, campaign donations — or even sharing an alma mater. When asked by reporters, attorneys could easily name the attorneys who got the most cases. … In Ohio, it is legal and common for attorneys to donate politically to a judge’s campaign, even judges who assign them cases. Some — but not all — of the attorneys who get a high number of appointments donated.” Read more here. (H/T Cassandra Burke Robertson).
#10 The Ethics of Rural Access to Justice. From Law360, an op-ed by Daria Fisher Page (Iowa Law) and Brian Farrell (Iowa Law): “Recent headlines like ‘Attorney Shortages in Indiana Create Access to Justice Problem' on WFYI Indianapolis and ‘Attorney Shortage in S.E. Iowa Raise Concern for Timely Justice’ on KTVO, which reaches parts of northern Missouri and southern Iowa, continue a trend of warnings that have been raised by news outlets and legal publications for over a decade.The premise is simple: A declining number of rural practitioners has resulted in a rural access to justice crisis. But is the relationship between these two factors — the number of attorneys and access to justice — so straightforward?”
March 26, 1930. The nation’s first female U.S. Supreme Court Justice, Sandra Day O’Connor, was born. She passed away in late 2023. I was honored to attend her funeral. You can read more about that in Bonus Post No. 8. And for a tour through previously unpublished materials from PresidentRonald Reagan's archives about her historic nomination, revisit Bonus Post No. 7.
March 26, 2011. Lawyer Geraldine Ferraro, the first woman to appear as a major party candidate for vice president of the United States, died.
Regulatory Reform
Thanks to the newly-launched organization Responsible AI in Legal Services - RAILS (for background see Roundup No. 32 under “Accountability in Our Democracy”), we now have a terrific research tool to track regulatory responses to AI by courts, developed by Duke Law student Madhavi Nambiar. Here’s a description from the RAILS website:
As AI continues to transform various aspects of the legal profession, courts across the United States are grappling with the challenges and opportunities presented by this rapidly advancing technology. In response, a patchwork of court orders, rules, and guidelines has emerged at various levels of the judicial system, aiming to regulate the use of AI in legal proceedings and ensure its ethical and responsible application. By compiling and organizing court orders, rules, and guidelines related to AI use in one centralized and open-source location, this tool aims to help legal professionals, researchers, policymakers, and other stakeholders stay informed about the evolving landscape of AI governance in the courts—facilitating compliance, promoting consistency, enabling research and analysis, fostering collaboration among RAILS working groups and others, and enhancing public understanding.
Source: AI Use in Courts Tracker, RAILS
Learn more and check out the AI Use in Courts Tracker here.
Recommended Reading — Recent Scholarship
“Does Googling Justice Work? Auditing Search Engines' Performance as Intermediaries of Legal Help Online” by Margaret Hagan (Stanford Law) and Nóra Al Haider. From the abstract:
Online search engines are key providers of legal information. Their responses to people’s search queries can influence whether and how people make use of the legal system to deal with problems like evictions, domestic violence, debt collection, and natural disasters. This article presents a new research protocol to understand and evaluate what search engines are showing to people who are seeking out legal help. Using this novel search audit protocol, the article identifies concerning trends in search engines’ responses to people’s legal queries, including low-quality information, incorrect jurisdiction, and an absence of governmental or legal aid links. The article then proposes technical and policy strategies that may improve search engines’ role in people’s attempts to access the justice system online. In this research paper, we evaluate the search results that Google shows for common legal help queries -- to determine if the search engine shows jurisdiction-correct, issue-correct results to people seeking help. The paper raises concerns about the current algorithm's design, in connecting people to key information when their rights, houses, jobs, security, and family are at risk.
“Rule 11 Is No Match for Generative AI” by Jessica Gunder (Idaho Law). From the abstract:
In a series of high-profile ethics debacles, attorneys who used generative AI technology found themselves in hot water after they negligently relied on fictitious cases and false statements of law crafted by the technology. These attorneys mistakenly relied upon the output they received from a generative AI product without verifying and validating that output. Their embarrassing ethical breaches made national news, and spurred judges to implement standing orders that require attorneys to disclose their use of AI technology. Scholars were quick to criticize these standing orders and the standing orders are rife with problems. But are they needed? Or are the standing orders redundant because Civil Rule of Procedure 11 can address this problem? Generative AI, and the filing of briefs that contain fictitious cases and false statements of law is testing the reach of Rule 11, which is coming up lacking. This article is the first to study and evaluate whether Rule 11 can effectively address litigant use of generative AI output that contains fictitious cases and false statements of law. In this article, I contend that, while the failure to perform adequate research is conduct that can be reached through Rule 11, the rule is not well-suited to the task of regulating this behavior, and Rule 11’s inadequacy is likely spurring the creation of these standing orders. I then analyze the benefits and detriments that inure from these standing orders, setting forth various considerations for judges and jurisdictions to weigh when evaluating whether to impose their own standing orders, revise current standing orders, or promulgate local rules to regulate litigant use of generative AI technology.
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, Vorys, Sater, Seymour and Pease, LLP — multiple locations. Responsible for assisting with the review and identification of potential conflicts issues with respect to clients, matters, and new business firm wide. The Conflicts Attorney works closely with the firm’s Ethical Questions Committee, the Conflicts Department, and with the Rates, Fees and Engagements Committee. Learn more here.
Conflicts Attorney Manager, Gibson Dunn — Century City. Responsible for analyzing conflict of interest reports for all new firm representations and lateral attorney hires, among other duties. 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 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. TheNational 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.
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.
