LER No. 38 - WI Bar Settles Diversity Dispute, Senate Subpoena on SCOTUS Ethics Ignored, NYSBA Releases AI Guidelines, Student Protests, Justice Tech, Rec Reads, Jobs, Events & More (04.15.24)
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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Highlights from Last Week - Top Ten Headlines
#1 Federal Judiciary Endorses Transparency in Financial Ties of Amicus Briefs. From Reuters: “A federal judicial panel on Wednesday called for greater transparency requirements for outside groups that file amicus briefs in cases by mandating they disclose when much of their revenue comes from a party involved in the lawsuit or its attorneys. The U.S. Judicial Conference's Advisory Committee on Appellate Rules endorsed the proposal following calls by Democratic lawmakers and others for changes to shed a light on the extent to which litigants secretly fund efforts to influence cases' outcomes through amicus, or friend-of-the-court, briefs.” Read more here.
#2 Senate Judiciary Committee’s Subpoena Seeking Information About Supreme Court Gifts Rejected. From the Washington Post: “The Senate Judiciary Committee sent a subpoena Thursday to conservative judicial activist Leonard Leo as part of a months-long inquiry into undisclosed gifts to Supreme Court justices and he promptly rejected it, calling the move ‘politically motivated.’” Read more here.
#3 New York State Bar Association Adopts AI Ethics Guidelines. From Reuters: “The New York State Bar Association has adopted guidelines for lawyers to use artificial intelligence without running afoul of attorney ethics rules, as organizations and courts continue to weigh the benefits and pitfalls of AI in the legal sector. Lawyers should take precautions to safeguard sensitive client information and protect confidentiality, and should not rely solely on information generated by AI and generative AI tools in client matters, a state bar AI task force urged in a new report.” Read more here.
#4 Wisconsin Bar Settles Challenge to Diversity Clerkship Program. From the ABA Journal: “The State Bar of Wisconsin has agreed to redefine ‘diversity’ as it applies to its Diversity Clerkship Program to settle a challenge filed by the Wisconsin Institute for Law & Liberty. Skylar Croy, associate counsel for the Wisconsin Institute for Law & Liberty, called the settlement agreement a ‘victory’ in a press release, while the Wisconsin state bar said in an online article it ‘successfully defended’ its program. The Wisconsin Institute for Law & Liberty’s federal lawsuit, filed on behalf of Wisconsin lawyer Daniel Suhr, had alleged that the diversity program discriminated based on race. ‘But the Diversity Clerkship Program did not, and does not, discriminate based on race,’ the Wisconsin state bar article said.” Read more here.
#5 Judge Concerned AI Disclosure Rules May Deter Use Despite Potential Benefits. From Law.com: “A U.S. Court of Appeals for the Sixth Circuit judge said this week that he's worried court rules requiring lawyers to disclose their use of artificial intelligence could deter them from using the technology at all, despite its potential benefits for the practice of law.” Read more here.
#6 David Lat on Last Week’s Nonlawyer Petition. Last week’s LER, Headline # 3 featured a petition calling for the ABA to stop using the term “nonlawyer.” David Lat explored the issue further in Bloomberg Law: “Earlier this week, I interviewed Olga Mack and Damien Riehl about their initiative. Mack told me it’s an issue she’s been thinking about her entire legal career. In her first few legal jobs, she worked with numerous non-attorney professionals who were ‘more senior, experienced, and indispensable to their organizations than many lawyers,’ but were referred to as ‘nonlawyers’—based not on what they are, but what they are not. She started asking herself, ‘Why are we using this term?’ Defenders of the term … said ‘nonlawyer’ is accurate and efficient. Lawyer and legal commentator Carolyn Elefant, addressing the issue back in 2017, cited the heightened ethical duties of lawyers and said that speaking of lawyers versus nonlawyers is ‘not an insult, it’s a reality.’ And not everyone sees the term as particularly negative—like Bryan Garner, editor of Black’s Law Dictionary and a leading authority on legal language.” Read more from Lat here.
#7 Student Protests at Berkeley Law. From Bloomberg Law: “Erwin Chemerinsky, dean of UC Berkeley’s School of Law and an ardent supporter of free speech, rebuked a group of students for staging a pro-Palestinian protest at his home as the fallout from Israel’s war in Gaza continues to roil US campuses. The incident on Tuesday evening occurred after a poster depicting Chemerinsky with a bloody knife and fork and the caption ‘No dinner with Zionist Chem while Gaza starves’ circulated on social media and at the law school, according to a letter he posted on the Berkeley Law website. Chemerinsky, who is Jewish, described the imagery as disturbing.” Read more here. Will there be discipline for the students? PrawfsBlawg offers some thoughts here.
#8 Former President’s Hush-Money Recusal is “Baseless.” From Steven Lubet in The Hill: “Having taught legal ethics for 40 years, and as the author of numerous books and articles specifically on judicial ethics, I have been consulted on possible recusal issues by scores of lawyers and judges. I have seldom seen a case weaker than this one, and I have discouraged lawyers from filing recusal motions in more compelling circumstances.” Read more here.
#9 Fake AI Lawyers? From Futurism: “An account purporting to represent a law firm has been caught sending out ominous threats — but upon closer inspection, it appears that the ‘firm’ doesn't exist, nor does its lawyers. As 404 Media reports, this seeming AI scam began when Ernie Smith, the owner of the blog Tedium, got a ‘copyright infringement notice’ from someone named Will Thomas claiming to represent Commonwealth Legal, an allegedly Arizona-based law firm.” Read more here.
#10 New White Paper on Justice Tech. Hot off the press from the Justice Technology Association in collaboration with Pro Bono Net is their “The State of Justice Technology 2024.” Download it here.
This Week in Ethics History
April 15, 1865. President Abraham Lincoln was assassinated. A decade or so before he died, Lincoln delivered a lecture, likely to a group of young lawyers, and his handwritten notes are below. The opening lines state: “I am not an accomplished lawyer—I find quite as much material for a lecture, in those points wherein I have failed, as in those wherein I have been moderately successful.” Of course he was being modest; he was a highly successful lawyer in Illinois before becoming president.
Here’s some more of his wisdom from the last paragraph: “Never encourage Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser, in fees, expenses, and waste of time. As a peace-maker, the lawyer has a superior opportunity of being a good man. There will still be business enough.” You’ll find more from Lincoln under “Wisdom for the Week” below.
April 20, 1920. John Paul Stevens, who served as an associate justice of the U.S. Supreme Court from 1975 to 2010, was born in Chicago. He retired as the third-longest serving justice. Among his legacy was a commitment to prosecutorial ethics.
Recommended Reading — Recent Scholarship
This week’s recommendations include two pieces from Rebecca Roiphe—she’s on 🔥! One is a review of an article by Nora Freeman Engstrom and James Stone, which is also a recommended read. So you get three recommendations this week!
“Public Confidence, Judges, and Politics on and Off the Bench” forthcoming in Law and Contemporary Problems by Bruce Green (Fordham) and Rebecca Roiphe (New York Law School). From the abstract:
Public confidence in the judiciary is at a low point. There are multiple reasons for the public’s waning faith in judges, but the perception that they are merely politicians in robes plays a significant part. This article analyzes the politicization of the judiciary and argues that while ideology invariably affects judicial decisionmaking, the professional identity of judges limits its impact. A commitment to judicial norms and processes as well as a concern for professional reputation serve as a real break on partisan loyalty and affiliation. The task is to preserve and promote this professional identity and convey to the public that judges' commitment to judicial norms and processes eclipses their personal political affiliations or beliefs. This article argues that judges should seek to cultivate and prioritize this professional identity and that in order to do so, they should refrain from engaging in certain overtly political conduct. The nature of the appropriate activities both on and off the bench necessarily involves complicated line-drawing unsuited to regulatory enforcement. As a result, preserving the legitimacy of the judiciary cannot be fully accomplished by regulation and much of the work in both cultivating professional identity and conveying the judge’s primary commitment to this shared identity will have to be undertaken by judges themselves.
“Auto Clubs and the Lost Origins of the Access-to-Justice Crisis” forthcoming in the Yale Law Journal by Nora Freeman Engstrom (Stanford) and James Stone (Stanford). From the abstract:
In the early 1900s, the country’s 1,100 automobile clubs did far more than provide the roadside assistance, maps, and towing services familiar to AAA members of today. Auto clubs also provided, free to their members, a wide range of legal services. Teams of auto club lawyers defended members charged with driving-related misdemeanors and even felonies. They filed suits that, mirroring contemporary impact litigation, were expressly designed to effect policy change. And they brought and defended tens of thousands of civil claims for vehicle-related harm. In the throes of the Great Depression, however, local bar associations abruptly turned on the clubs and filed scores of suits, accusing them of violating nascent legal ethics rules concerning the unauthorized practice of law (UPL). In state after state, the bar prevailed—and, within a few short years, auto clubs’ legal departments were kaput.
Drawing on thousands of pages of archival material, this Article recovers the lost history of America’s automobile clubs, as well as their fateful collision with the bar. … [I]n the rise and fall of America’s auto clubs, we find new, untapped evidence that contributes to a range of critical contemporary debates. In particular, our story uncovers fresh evidence to support the value of corporate practice, currently—but controversially—banned by Model Rule 5.4. In the bar’s relentless campaign to shutter auto clubs, not because they harmed members but, rather, because they threatened lawyers’ livelihoods, we unearth direct proof that today’s UPL bans, which continue to stymie the delivery of affordable legal services, have fundamentally rotten roots. And ultimately, we show that the present-day access-to-justice crisis—a crisis that dooms the vast majority of Americans to navigate complex legal processes without any expert assistance—isn’t a product of inattention or inertia. The crisis was, rather, constructed by the legal profession of which we are a part.
“Cars, Bars, and the Delivery of Legal Services,” reviewing Engstrom & Stone’s “Auto Clubs and the Lost Origins of the Access-to-Justice Crisis” in JOTWELL by Rebecca Roiphe. From the introduction:
Imagine a world in which you call AAA for roadside assistance after a fender bender and you can ask to be transferred to a lawyer to help you with your insurance claim. In their article, Auto Clubs and the Lost Origins of the Access to Justice Crisis, Nora Freeman Engstrom and James Stone bring back a past when this was reality and offer a vision for a future in which not only drivers but also others in need of legal services can find a fast, effective, and inexpensive solution to their problems.
Engstrom and Stone trace the origin of the contemporary unauthorized practice of law rules to disputes about auto clubs, staffed with lawyers, who helped members with an array of legal problems related to cars and roads. They draw on archival material to bring the reader back to a very different legal landscape. It is not always easy to use history in legal scholarship. If you aren’t engaged in an originalist interpretation of the Constitution or a statute, it is often not entirely clear how history can be relevant to a contemporary legal problem. The story that Engstrom and Stone tell, however, is so clearly useful.
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.
This week I want to highlight the much-anticipated launch of the Centralized Clerkships Database from the Legal Accountability Project (“LAP”). The LAP’s executive director Aliza Shatzman was featured in this section back in Roundup No. 27. (Revisit that post to learn more about the LAP’s work and why Shatzman founded the organization.) The database is what Shatzman calls “a first-of-its-kind transparency initiative to democratize judicial clerkship information.” From the LAP website:
A judicial clerkship is a particularly consequential first legal job, considering the outsized importance of a relationship with a judge on an attorney’s future success. Therefore, it is particularly important for clerkship applicants to identify the right clerkship. This is challenging for students, since so little candid, transparent clerkship information is accessible to them, and how selectively it is shared. LAP’s Centralized Clerkships Database provides broader, more equitable, more candid information about judges as managers, chambers culture, and clerkship experiences, thereby ensuring that everyone who wants to clerk can obtain baseline information. ... The Clerkships Database replaces the “whisper networks” which are currently one of the only ways for prospective clerks to obtain information about judges. This initiative ensures that applicants have as much information about as many judges as possible before making important career decisions about clerking. The Clerkships Database will also empower more diverse students to pursue clerkships, thereby bolstering schools’ clerkship programs. 
I sure wish the LAP’s database had been around when I was a law student. As a first generation lawyer, I didn’t understand the important of a clerkship and I lacked access to this sort of data. Making information more transparent and available increases opportunities for law students. And it helps hold judges accountable for their treatment of law clerks as well as staff, because the survey data compiled in the database includes information about judges who create positive work environments as well as those who mistreat clerks. Learn more about the database here.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Director of Legal Innovation, Oklahoma Access to Justice Foundation — Tulsa/Oklahoma City/remote option. The Director of Legal Innovation will have primary responsibility for developing public legal information and accessible court forms, supporting public interest programming with Oklahoma’s law schools, managing and expanding relationships with Oklahoma courts, and identifying opportunities to better implement technology to support access to justice in Oklahoma. Learn more here.
Conflicts Resolution Attorney, Morrison Foerster — New York, San Francisco, Washington D.C. Responsible for resolving conflicts reports and addressing related conflicts of interest issues. This individual performs in-depth research, makes recommendations for resolution, drafts related waivers, and documents clearance. Learn more here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all 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 6-7 — ABA Center for Innovation Inaugural AI and the Practice of Law Summit in Chicago. Register 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.
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
“Resolve to be honest at all events; and if, in your own judgment, you cannot be an honest lawyer, resolve to be honest without being a lawyer.” — Abraham Lincoln
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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