LER No. 36 - "Cowboy Carter" Justice, Disbarment for Eastman, Clark Disciplinary Hearing Starts, Paxton Trades Trial for Ethics Courses, Judge Admits Abusive Behavior, Jobs, Events & More (04.01.24)
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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This week was especially busy in the world of legal ethics with both the opening of the Jeffrey Clark disciplinary hearing and the much-anticipated opinion recommending the disbarment of John Eastman. I spoke with NPR reporter Tom Dreisbach on Morning Edition about the significance of the Eastman decision and what it means for legal ethics. Listen here.
Jerry Lawson published a terrific review of Law Democratized: A Blueprint for Solving the Justice Crisis. Here’s a glimpse:
Is anyone in the country better qualified than Renee Knake Jefferson to write about access to justice? Professor of Law at the University of Houston, co-reporter for the ABA Commission on the Future of Legal Services, and designated by the American Bar Association as a “Legal Rebel,” she has long been a thought leader in the quest to make legal help available to all, regardless of resources. Her new book, Law Democratized: A Blueprint for Solving the Justice Crisis, does not disappoint. …
Jefferson begins the book with an attention-grabbing in medias res description of a consequence of her near-death injury: “I faced multiple problems that required legal help. And yet, even as a lawyer myself, I did not know what to do.” This tracks my experience. I’ve been a lawyer for 40+ years, but it was far from easy for me to find lawyers qualified to assist me in identifying and sorting through the myriad issues surrounding my wife’s stroke two years ago. …
Bottom Line: Unequal access to justice is, and must be, a national priority. This is the best assessment I have seen of where the country is and where we must go. Lawyers, judges, legislators, bar officials, and anyone interested in making our civil justice system fairer and more effective will find this book essential.
And now, let’s look back at the headlines from this busy week in legal ethics.
Highlights from Last Week - Top Ten Headlines
#1 Disbarment Recommended for John Eastman. Read a summary of the disbarment decision, a look back at the trial proceedings and participants, and a forecast of what comes next at LER Bonus Content No. 11.
#2 Jeffrey Clark Disciplinary Hearing Begins. From Politico: “Jeffrey Clark, a former Justice Department official who worked closely with former President Donald Trump in a bid to subvert the 2020 election, should face professional consequences — including the potential loss of his license to practice law — for his effort to throw the nation into chaos, D.C. bar disciplinary authorities argued Tuesday.” Read more here. And revisit my coverage of opening day at LER Bonus Content No. 10.
#3 Recusal Questioned in Mifepristone Case. From the Guardian: “When the former president Donald Trump appointed the Texas attorney James Ho to the fifth circuit court of appeals in 2017, lawyers at the prominent law firm Gibson Dunn – where Ho worked before his appointment – had a problem: how to replace the politically connected Ho. Turns out, they didn’t even need to change the home address for his replacement. Ho’s wife, Allyson, moved into her husband’s position and his old office. … Ho served on the three-judge panel last summer that ruled to restrict access to mifepristone. The legal group behind the mifepristone case, Alliance Defending Freedom, made at least six payments from 2018 through 2022 to his wife, Allyson, a powerhouse federal appellate lawyer who has argued in front of the supreme court and has deep connections to the conservative legal movement that has led the attack on the right to abortion in the US. The payments don’t violate the court’s code of conduct, according to Stephen Gillers, a New York University emeritus professor of law and author of Regulation of Lawyers: Problems of Law and Ethics. But some court watchers argue that Ho’s failure to recuse himself from the case illustrates why public trust in the judiciary is eroding.” Read more here.
#4 Judicial Sexual Harassment Claim Dismissed For Lack of Jurisdiction. From Law360: “The Second Circuit Wednesday agreed with a New York federal district court’s dismissal of a suit brought by a former New York Law clerk accusing the state judicial system of covering for a judge she says sexually harassed her, holding that it lacked jurisdiction to hear the appeal.” Read more here.
#5 Paxton Avoids Trial; Agrees to 15 Hours of Legal Ethics Courses. From the Texas Tribune: “Prosecutors on Tuesday agreed to drop the securities fraud charges facing Attorney General Ken Paxton if he performs 100 hours of community service and fulfills other conditions of a pretrial agreement, bringing an abrupt end to the nearly nine-year-old felony case that has loomed over the embattled Republican since his early days in office. The deal, which landed three weeks before Paxton is set to face trial, also requires him to take 15 hours of legal ethics courses and pay restitution to those he is accused of defrauding more than a decade ago when he allegedly solicited investors in a McKinney technology company without disclosing that the firm was paying him to promote its stock.” Read more here.
#6 Questioning Canada’s “Good Character” Requirement. From Slaw: “The recent appeal decision AA v Law Society of Ontario upheld the Law Society Tribunal’s 2023 decision to license to applicant AA after finding him to be of ‘good character’—even though AA had admitted to have sexually abused three young children in 2009 (and to hiding this information from the Law Society in an earlier licensing application, which he withdrew in 2017 following an anonymous tip disclosing the abuse).” Read more here.
#7 Judicial Abuse Warrants Counseling and Training. From Reuters: “A federal judge has agreed to receive counseling and training about workplace conduct after acknowledging ‘significant problems’ raised by a law clerk who accused the judge of abusing and harassing his chamber's staff. Chief U.S. Circuit Judge Debra Ann Livingston of the New York-based 2nd U.S. Circuit Court of Appeals said in a Dec. 15 order, made public this week that the unnamed judge pledged to fix the problems, resolving the misconduct complaint the clerk filed in 2022.” Read more here.
#9 Oregon Swears-In First Cohort of Licensed Paralegals. From the Oregon State Bar: “On Friday, March 29th at the Oregon Supreme Court in Salem, Oregon’s first cohort of Licensed Paralegals will be sworn in to the bar. Oregon State Bar’s pioneering Licensed Paralegal program was created to help with the unmet civil legal needs of Oregonians and is one of the first of its kind in the nation.” Read more here.
#9 Risks to Judges from Former President’s Attacks. Two headlines for #9. First, from the Washington Post: “The prosecutor in Donald Trump’s upcoming hush money trial has asked the judge to clarify whether a gag order issued for the former president this week bars him from publicly attacking the judge’s adult daughter — and to expand the order if it doesn’t. Manhattan District Attorney Alvin Bragg made the request after social media posts by Trump attacking the daughter of New York Supreme Court Justice Juan Merchan for her professional affiliations with Democratic candidates and politicians.” Read more here. Second, also from CNN: “A sitting federal judge on Thursday harshly criticized Donald Trump’s attacks on the judge overseeing the former president’s criminal case tied to alleged hush money payments, telling CNN that such statements threaten the viability of the American legal system. U.S. District Judge Reggie Walton spoke with CNN’s Kaitlan Collins on ‘The Source’ in the wake of Trump’s attacks on Judge Juan Merchan, which helped prompt the New York judge to issue a gag order on the former president earlier this week. It is unusual for federal judges to speak publicly, especially about specific political or legal situations. ‘It’s very disconcerting to have someone making comments about a judge, and it’s particularly problematic when those comments are in the form of a threat, especially if they’re directed at one’s family,’ said Walton, who has also faced threats, as has his daughter. ‘We do these jobs because we’re committed to the rule of law and we believe in the rule of law, and the rule of law can only function effectively when we have judges who are prepared to carry out their duties without the threat of potential physical harm.’” Read more here.
#10 “Cowboy Carter” Brings Justice Through Music. From CNN: “Beyoncé knows how to get people talking, and her new album ‘Cowboy Carter,’ had tongues wagging long before its release date on March 29. … It’s no wonder the art around her latest country project has already spawned deep socio-political discourse about American symbolism, Blackness, justice and reclamation.” Read more here. And Eric Michael Garcia posted a music history lesson in this X thread explaining how Beyoncé “reclaims music the Beach Boys used as an anthem back for Black musicians AND simultaneously offers some restitution for women that Chuck Berry treated terribly.” (It’s an incredible album - I recommend listening from start to finish. Highlights include cameos from Dolly Parton and Willie Nelson. For more on my views about how music can bring justice when law fails, check out this essay ”Why the Law Needs Music: Revisiting NAACP v. Button Through the Songs of Bob Dylan.”)
This Week in Ethics History
April 7, 2017. Neil Gorsuch was confirmed by the Senate as an associate justice of the U.S. Supreme Court. Before his confirmation, he wrote an article in Judicature advocating for reforms to unauthorized practice of law restrictions and ABA Model Rule 5.4’s ban on nonlawyer ownership and investment for law practices (see here). There will be at least two opportunities for the Supreme Court to confront these issues directly in the coming months/years (see here and here).
April 7, 2022. The nation’s first Black female U.S. Supreme Court justice, Ketanji Brown Jackson, was confirmed by the Senate.
Recommended Reading — Recent Scholarship
“Consumer Litigant Finance and Legal Ethics: Empirical Observations from Texas” by Lynn Baker (Texas) and Anthony Sebok (Cardozo). From the abstract:
A handful of states, including Texas, have Rules of Professional Responsibility which permit attorneys to provide cash advances to their own clients. In previous work, we suggested that if more states permitted law firms to offer this sort of funding to their clients it would increase competition within the consumer litigant funding market, to the benefit of consumers. We also hypothesized that relaxing these existing prohibitions would better enable tort claimants to decline low-ball settlement offers from defendants in one-off cases.
This paper offers some initial insights into these questions. It reports the findings of our modest empirical study involving semi-structured interviews with four established Texas plaintiffs’ firms that represent a large number of mass tort claimants as well as varying numbers of single-event claimants. We obtained confidential information on the circumstances, frequency, and financial terms under which these sophisticated and well capitalized firms provide cash advances to their clients. We also sought information on each firm’s views on third-party advances to their clients, including their willingness and ability to negotiate repayment haircuts with third-party funders on behalf of their clients.
We found great diversity among the Texas firms in their approach to the opportunity provided by Texas Rule 1.08(d) to advance “reasonably necessary medical and living expenses” to their clients. Our findings suggest that clients are likely to benefit from – and are unlikely to be harmed by – a relaxation of the strict prohibition against attorney advances to their clients that exist in the vast majority of states and in ABA Mode Rule 1.8(e).
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.
This past week I’ve been mulling over an observation from Duncan Carling, who led the State Bar of California trial against John Eastman. Carling told NPR reporter Tom Dreisbach: “Mr. Eastman was really using his law license in ways that frankly, threaten our democracy.” What does accountability require in this context?
In a world increasingly filled with alternative facts, deep fakes, and fake news, lawyers have a heightened obligation to convey fact-based evidence to separate reality from fiction. This is especially true, I believe, when our democratic institutions are vulnerable. Judge Yvette Roland made clear that when a lawyer’s zealous advocacy crosses the line into obviously false information held out as the truth, discipline is warranted. As Judge Roland explained in her opinion:
While attorneys have a duty to advocate zealously for their clients, they must do so within the bounds of ethical and legal constraints. Eastman’s actions transgressed those ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support. Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law.
For more of my thoughts on this, see here.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Conduct & Ethics Investigations Counsel, Aon — Chicago/virtual. Responsible for conducting complex internal investigations related to potential employee misconduct in violation of Aon’s Code of Conduct and/or the laws and regulations of the United States and other countries in which Aon operates; assisting with conduct and ethics diligence; and more. Learn more here.
Conflicts & Compliance Counsel, Hall, Render, Killian, Heath & Lyman — Indianapolis/hybrid. Responsible for championing ethical practices across the firm’s offices, serving as primary conflicts counsel, and more. Learn more here.
Senior Ethics and Compliance Specialist, University of Southern California — Los Angeles. Manages non-research components of the conflict-of-interest compliance program; conducts workplace investigations into alleged conflicts of interest; and serves as a subject matter expert, developing and delivering training sessions as needed to reduce risk throughout the university. Learn more here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
April 1-5 — Jeffrey Clark Disbarment Hearing Continues. This trial will be live-streamed on YouTube at this link.
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
“[T]he First Amendment does not protect speech that is employed as a tool in the commission of a crime.” — Judge Yvette Roland, California State Bar
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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