LER No. 37 - Sex Shaming Prosecutor, Clark Disbarment Sought, Petition to End ABA’s “Nonlawyer,” Fed Soc Explores Licensing Reform, 1st Am. Challenge to Mandatory Bar, Jobs, Events & More (04.08.24)
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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Last week was another busy one in the world of legal ethics. The DC Bar disciplinary trial for Jeffrey Clark concluded with a recommendation of disbarment, and John Eastman sought a stay from Judge Roland’s opinion placing him on inactive status so that he can continue practicing law to pay his legal bills. More on both of them below in the headlines.
I returned to NYC for an event at NYU Law School hosted by the Center for Race, Inequality and the Law. It was fun for my book Law Democratized to be in conversation with three other books about access to justice and ethics: Lawyer Nation by Ray Brescia (Albany), Sheltered by Sateesh Nori (NYU), and The End of Family Court by Jane M. Spinak (Columbia). And I can say I survived the NYC earthquake of 2024!
Hope you are able to catch a glimpse of the eclipse today. I’ll be wrapping up a class at the University of Houston and plan to let my students out in time to experience whatever we can of the 93-95% totality in our area! 🌘
Highlights from Last Week - Top Ten Headlines
#1 Disciplinary Panel Finds Jeffrey Clark Violated Ethics Rules — Disbarment Sought. From Politico: “A disciplinary panel in Washington has found that Jeffrey Clark, a former high-ranking Justice Department official, violated ethics rules for lawyers in his attempt to aid Donald Trump’s bid to subvert the 2020 election. The three-member disciplinary committee determined Thursday that Clark’s campaign to pressure Justice Department leaders to help upend the transfer of power to Joe Biden violated his duties as an attorney. The preliminary ruling jumpstarts a process that could lead to the suspension or even permanent revocation of Clark’s license to practice law, even as he’s considered a candidate for a senior position in a second Trump administration. Disciplinary investigators who brought the charges against Clark say they intend to advocate for his disbarment.” Read more here. And revisit my coverage of the trial’s opening day at LER Bonus Content No. 10.
#2 John Eastman Wants License Re-Activated. From CNN: “Former Trump attorney John Eastman is trying to get his law license back so that he can represent Reps. Matt Gaetz and Marjorie Taylor Greene in a political speech fight – and pay his own legal bills as he fights charges stemming from his efforts to overturn the 2020 election. Eastman is asking a judge in California to reactivate his license following a disciplinary decision last month that rendered him unable to practice law for now.” Read more here. And you’ll find 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.
#3 Petition Calls for ABA to Stop Using the Term “Non-Lawyer.” From Law.com: “On Wednesday, a petition was published on LinkedIn calling for the ABA to cease using the term 'non-lawyer.' Olga Mack, a fellow at the Stanford Center for Legal Informatics, and Damien Riehl, vice president and solutions champion at legal tech platform vLex, are leading the campaign.” Read more here. View and sign the petition here.
#4 Ninth Circuit Considers First Amendment Challenge to Mandatory Bar. From The Recorder: “In a First Amendment challenge to mandatory bar association membership, U.S. Court of Appeals for the Ninth Circuit judges on Tuesday questioned what types of statements go beyond a bar organization’s primary role of regulating attorneys. The appeal centers on articles the Oregon bar published in its monthly bulletin in April 2018, including one that condemned white nationalist violence. Oregon attorney Daniel Crowe and the Oregon Civil Liberties Attorneys sued the state bar, claiming their right to freedom of association was violated.” Read more here.
#5 SCOTUS Declines Illinois Conflict Case. From Law360: “The U.S. Supreme Court on Monday declined to take up the case of a lawyer suspended in Illinois who claimed the state’s entire federal judiciary needed to recuse itself from his challenge to Illinois’ attorney watchdog. The justices denied a certiorari petition from attorney Maurice Salem, who argued the Seventh Circuit overlooked significant conflict issues and misapplied decades-old precedent governing class-of-one discrimination and substantive due process claims when it affirmed the district court's handling of his case in September 2023. The justices denied the petition without addressing Salem's request that they at least allow the Western District of Michigan to weigh in on the conflict issues in his case.” Read more here.
#6 Judge Blocks AI-Enhanced Video Evidence. From NBC News: “A Washington state judge overseeing a triple murder case barred the use of video enhanced by artificial intelligence as evidence in a ruling that experts said may be the first-of-its-kind in a United States criminal court.” Read more here.
#7 Ethics Complaint Filed After Federal Judge Raises Concerns in TV Interview About Safety. From Bloomberg Law: “A conservative legal group filed an ethics complaint against a Washington federal trial judge who decried threats to the judiciary in a television interview. The Article III Project’s Tuesday complaint alleges that the March 28 CNN appearance by US District Judge Reggie Walton violated conduct rules that prohibit judges from commenting on matters pending before a court.” Read more here.
#8 Public Opinion of SCOTUS Improves But Less Than Half Still Approve of Its Work. From the Wisconsin Law Journal: “A new Marquette Law School Poll national survey finds that 47% of adults approve of the job the U.S. Supreme Court is doing, while 53% disapprove. This is the highest approval of the Court since January 2023, when it was also 47% with 53% disapproving. The last time approval was greater than 50% was March 2022, when it was 54%.” Read more here.
#9 Sex Shaming + Prosecutorial Ethics. From the NYT: “During his closing argument in the 2004 murder trial of Brenda Andrew in Oklahoma, a prosecutor dangled her thong underwear before the jury. She had packed the undergarment for a trip to Mexico a few days after her estranged husband was killed. The prosecutor, Gayland Gieger, said the item was strong evidence that Ms. Andrew had murdered her husband. … The jury convicted Ms. Andrew and condemned her to death. She is the only woman on the state’s death row. Later this month, the Supreme Court will consider whether to hear Ms. Andrew’s appeal, which said the display of her underwear was a representative part of an unrelenting strategy by prosecutors, as a dissenting judge put it, ‘of introducing evidence that has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother and a bad woman.’” Read more here. (For other legal ethics related issues before the Supreme Court this term, see LER Bonus Content No. 3.)
#10 Judicial Recusal Sought by Former President in Hush-Money Trial. From NPR: “Former President Donald Trump is demanding a new judge just days before his hush-money criminal trial is set to begin, rehashing longstanding grievances with the current judge in a long-shot, eleventh-hour bid to disrupt and delay the case. Trump's lawyers — echoing his recent social media complaints — urged Manhattan Judge Juan M. Merchan to step aside from the case, alleging bias and a conflict of interest because his daughter is a Democratic political consultant. The judge rejected a similar request last August.” Read more here.
This Week in Ethics History
April 11, 1862. Charles Evans Hughes, who served both as an associate justice and a chief justice of the U.S. Supreme Court, was born. Notably, he led the effort to avoid FDR’s “court packing” plan and maintain the number of justices at nine.
April 9, 2008. The ABA issued Formal Opinion 08-450, Confidentiality When Lawyer Represents Multiple Clients in the Same or Related Matters. From the abstract:
Lawyers frequently are engaged to represent a client by a third party, most commonly an insurer or a relative. In some circumstances, the third party also may be a client of that lawyer, either with respect to the matter in question, or with respect to a related matter. When a lawyer represents multiple clients, either in the same or related matters, Model Rule 1.6 requires that the lawyer protect the confidentiality of information relating to each of his clients. Because the scope of the "implied authority" granted in Rule 1.6(a) to reveal confidential information "to carry out a representation" applies separately and exclusively to each representation the lawyer has undertaken, a conflict of interest arises when the lawyer recognizes the necessity of revealing confidential information relating to one client in order effectively to carry out the representation of another. In such a circumstance, the lawyer would be required to withdraw from representing one or both of her clients.
Regulatory Reform
Last week the Federalist Society held a conference on regulatory reform: “Legal Licensing Reform: Does the World Need More Lawyers?” I was intrigued and watched online. (You can too here.) The event was inspired by “The World Needs More Lawyers,” a position paper authored by Shoshana Weissmann (R Street Initiative) and others from the Fed Soc Regulatory Transparency Project. The paper was previously featured in LER Roundup No. 10, where I championed the reforms the authors advance and noted at the time: “I’ve always thought that lawyer licensure reform is an issue everyone can get behind, regardless of politics or labels of being conservative or liberal or libertarian. And this position paper helps prove that point.”
As for last week’s conference, the first panel “Broad Perspectives on Legal Licensing Reform” included Braden Boucek (Southeastern Legal Foundation), Lucian Pera (Adams & Reese), Stephen Younger (Nixon Peabody), and Jon Riches (Goldwater Institute). Clark Neely (Cato Institute) gave a keynote address, followed by a second panel “Practical Challenges to Legal Licensing Reform” featuring Paul Sherman (Institute for Justice), Caleb Trotter (Pacific Legal Foundation), Andy Kvesic (Radix Law), and Daniel Greenberg (Competitive Enterprise Institute).
It’s great to see these conversations happening more frequently — I can’t recall a day-long event like this devoted to licensing reform by the Federalist Society (readers, please correct me if I’m wrong that this is the first such event they’ve hosted). But I couldn’t help notice, and I’m sure you see it too looking at the lineup above, this entire event consisted of manels. The only woman who spoke all day was Weissmann to welcome and thank attendees. (For those planning future events to discuss legal licensing reform, I have binders full of women you could invite to join the conversation…happy to share recommendations.)
Recommended Reading — Recent Scholarship
This week’s recommended reading features two articles about judicial ethics.
“The Role of Accountability in Preserving Judicial Independence: Examining the Ethical Infrastructure of the Federal Judicial Workplace” by Susan Fortney (Texas A&M). From the abstract:
After news reports of sexual harassment allegations involving federal judges, U.S. Supreme Court Chief Justice John Roberts asked the Director of the Administrative Office of the U.S. Courts to assemble a working group to address concerns related to misconduct in the federal judicial workplace. Following the working group’s report, the judiciary adopted recommendations relating to discrimination and harassment in the federal judiciary. Using the ethical infrastructure framework, this article reviews what changes have been made and what is missing. It explains how the steps taken largely focus on formal aspects of communicating and monitoring standards of conduct. Notably missing are measures that relate to sanctions for wrongdoing and remedies for persons harmed. The article examines legislation designed to extend antidiscrimination laws to federal judicial employees. By supporting the provision of civil remedies available to other federal employees, the judiciary communicates that it is no longer relying on judicial exceptionalism, but recognizes the connection between accountability for law violations and public confidence in those who apply and interpret the law.
“Reining in Recusals” by Justin Van Orsdol. From the abstract:
As the spotlight on the Supreme Court shines brighter, the public has become increasingly aware of judicial misconduct and ethical issues. This increased awareness has also exposed the judiciary’s less-than-stellar record on handling such issues. Of these ethical issues, recusal decisions are a prominent cause for concern—especially in today’s hyper-politicized world. When or whether to recuse is a sensitive and important question most judges are bound to face. Although some statutory guidance exists, that guidance is far from a model of clarity. Even where statutory guidance is facially clear, recusal problems still persist due to benign and technological errors, or—in some cases—a fundamental misunderstanding of what the statutes require. Additionally, the rise of social media only complicates the vague statutory framework. And with more recent outspoken judges on the federal bench, new recusal questions emerge and unique recusal motions are sure to be filed. Recusal is not limited solely to judges but also affects judicial law clerks. That is, the actions of judicial law clerks affect the judges they clerk for. But guidance for judicial law clerks is varied and thin, which creates additional problems. Moreover, recusal has become increasingly weaponized and used for strategic advantage by all three branches of government. Each branch has ways to influence or dictate recusal decisions, all of which threaten the sanctity of the judiciary.
What is a judge to do? This Article explores and highlights potential recusal-worthy issues for both judges and judicial law clerks. Further, it details how recusal has become weaponized and explains the dangers in permitting the proliferation of recusal weaponization. Finally, this Article proffers reforms to help prevent and curb recusal abuse by (1) changing the timing of appellate review of recusal decisions; (2) modifying the appellate standard of review for recusal decisions; and (3) suggesting methods to prevent recusal manipulation in the en banc process.
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 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. New posts under this section will resume soon.
Legal Ethics Trivia
From the Texas Center for Legal Ethics, here’s the question of the month: “Can you respond to negative online reviews written by clients?” Test yourself at this website where you can read a short hypothetical, select an answer, and see your results. So far, only 20% have gotten it right. Will you?
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Conflicts Attorney Manager, Gibson Dunn — Palo Alto. Responsible for analyzing conflict of interest reports for all new firm representations and lateral attorney hires, identifying potential conflict problems to ensure new matters and attorney hires are compliant with the firm’s conflict and risk management policies and procedures, and more. Learn more here.
Conflicts Attorney, Taft Stettinius & Hollister LLP — Cleveland, Columbus, Dayton, Indianapolis, Minneapolis or Detroit. Responsible for reviewing, analyzing and articulating conflicts search results for new business and lateral hires, identifying potential conflict issues and determine appropriate steps for resolution, and more. Learn more here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all 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).
April 10 — A Lawyer’s Guide to Managing Difficult Clients and Colleagues with Ease, State Bar of North Dakota. Free webinar noon-1:30PM central. Learn more here.
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
“If there’s one thing this world needs, it’s more lawyers. Could you imagine a world without lawyers?” — Lionel Hutz, The Simpsons (as quoted in the Federalist Society Regulatory Transparency Project’s position paper “The World Needs More Lawyers”)
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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