LER No. 39 - TX Courts Toss Powell but Allow Paxton Discipline on Election Disputes, Earth Day Ethics, “Canceling Lawyers” Rec. Read, Fortney Wins ABA Ethics Award, Jobs, Events & More (04.22.24)
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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Hello from Minneapolis! I participated in the Workshop on Professional Identity Formation in the Professional Responsibility Course last week hosted by University of St. Thomas School of Law’s Halloran Center for Ethical Leadership in the Professions. Special thanks to David Grenardo, Neil Hamilton, Jerry Organ, and Felicia Hamilton (all of St. Thomas) for being wonderful hosts and to their fellow facilitators Barbara Glesner Fines (UMKC), Kendall Kerew (Georgia State), Tim Floyd (Mercer), Paula Schaefer (Tennessee), and Carwina Weng (Law School Admission Council). One highlight for me was a presentation by Professor Kerew about the obligations of lawyers as public citizens to engage in upholding the rule of law. She has a piece forthcoming in the Mercer Law Review on the topic, so keep an eye out for it! Another highlight was a presentation by Professor Schaefer, who offered serious critiques about lawyer assistance programs as we considered how to better cultivate lawyer wellbeing. She shared a haunting story about her former student who successfully graduated from Tennessee Law and passed the bar exam, only to become caught up in the character and fitness process and the lawyer assistance program, which didn’t function as it should. I learned a lot and enjoyed catching up with lots of legal ethics friends I haven’t seen in years and meeting new ones.
I also took myself on an informal walking tour of downtown Minneapolis while heading to a yoga class before the workshop began, and ran into Mary Tyler Moore (above) and walked through the skyway of the Diana E. Murphy U.S. Courthouse, Minneapolis (below). Judge Murphy was part of the wave of appointments by President Jimmy Carter in the late 1970s when he added more women to federal courts than all presidents before him combined. She was confirmed by the Senate as a judge for the United States District Court for the District of Minnesota on February 20, 1980. She was later elevated to the United States Court of Appeals for the Eight Circuit by President Bill Clinton where she became the first woman to serve on the Eighth Circuit. During my elementary school years, I lived in Stillwater, a small town near Minneapolis on the St. Croix River. I remember being inspired by both Moore and Murphy. “You’re going to make it after all.”
And now let’s look back at last week’s headlines.
Highlights from Last Week - Top Ten Headlines
#1 Former California State Bar Executive Director Faces Discipline for Alleged Misuse of Travel Funds. From the Daily Journal: “Former State Bar Executive Director Joseph L. Dunn is embroiled in a disciplinary trial that could have far-reaching implications. Allegations of misusing bar funds for personal travel to Mongolia and misleading the board have thrust him into the spotlight. The trial, overseen by State Bar Court Judge Yvette Roland, has been nothing short of contentious, with Dunn's attorney Mark J. Geragos sparring with the prosecution. Despite glowing character witnesses, such as esteemed UC Berkeley Law Dean Erwin Chemerinsky, the trial's complexity lies in dissecting legal fiduciary duties and interpreting terms like ‘external outreach’ within bar spending.” Read more here.
#2 TX Appeals Court Sides with Powell in Discipline Case Over Election Fraud Case. From Reuters: “A Texas appellate court on Wednesday upheld a decision to reject attorney disciplinary charges against Donald Trump ally Sidney Powell, finding that the state's bar failed to prove that she had engaged in ‘fraud, dishonesty, deceit, or misrepresentation.’ The Dallas-based Fifth Court of Appeals of Texas said in a 23-page opinion, that state bar prosecutors ‘employed a 'scattershot' approach to the case,’ which alleged that Powell had ‘no reasonable basis’ for filing lawsuits challenging U.S. President Joe Biden's 2020 election victories in key battleground states.” Read more here.
#3 TX Appeals Court Allows Discipline Case Against AG Paxton to Continue. From the Associated Press: “A Texas appeals court has ruled that Republican Attorney General Ken Paxton can face discipline from the state bar association over his failed effort to overturn the 2020 presidential election. A disciplinary committee of the State Bar of Texas accused Paxton in 2022 of making false claims of fraud in a lawsuit that questioned President Joe Biden’s victory. On Thursday, a three-judge panel of the 5th District Court of Appeals said Paxton can be sanctioned by the committee because the lawsuit seeks to punish him in his personal capacity as an attorney and not as a public official. ‘The focus of the Commission’s allegations is squarely on Paxton’s alleged misconduct — not that of the State,’ Judge Erin Nowell, an elected Democrat, wrote in the 2-1 opinion. The lone Republican on the panel, Judge Emily Miskel, was in dissent.” Read more here.
#4 SCOTUS Agrees with Judge Newman; Her Counsel Says This Demonstrates Her Mental Fitness. From IP Watchdog: “The U.S. Supreme Court today reversed an en banc decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) in which Judge Pauline Newman dissented, a development Newman’s lawyers say belies CAFC Chief Judge Moore’s opinion that Newman is mentally unfit to serve on the court.” Read more here.
#5 No Sanctions for Excessive Footnotes. From Law360: “A California federal judge will not sanction attorneys representing Google Maps customers in an antitrust action for their ‘numerous and excessively long footnotes’ after the lawyers on Wednesday explained it wasn't a tactic.” Read more here.
#6 Romance Leads to Recusal. From the Quad City Times: “An Iowa Supreme Court justice recused himself from a pending divorce case over claims he had an extramarital affair with the woman in the divorce more than a decade ago, according to court records. Iowa Supreme Court Justice Christopher McDonald granted an order to recuse himself in response to a motion.” Read more here.
#7 No Recusal Required for Fifth Circuit Judge in Citigroup Credit Card Fees Case. From Bloomberg Law: “A federal appellate court judge with a stake in Citigroup Inc. doesn’t need to recuse himself from the banking industry’s challenge to an $8 cap on credit card late fees, a federal judiciary oversight committee said. An investment held by Judge Don Willett of the US Court of Appeals for the Fifth Circuit in the country’s second largest credit card issuer was too ‘indirect and contingent’ to trigger a requirement that he recuse himself from the case, Judge Gerald A. McHugh, the acting chairman of the US Judicial Conference’s Committee on Codes of Conduct, said in a letter posted Wednesday.” Read more here.
#8 Texas A&M Law Professor Susan Fortney Wins ABA Ethics Award. From the ABA: “Susan Fortney, a law professor and recognized national expert on ethics, is the 2024 recipient of the Michael Franck Professional Responsibility Award, one of the American Bar Association’s top ethics honors. The award recognizes an individual whose contributions reflect the highest level of dedication to legal professionalism.” Read more here (and congratulations, Susan!)
#9 TX Assistant Attorney General Receives Support from 18 Others in Discipline Case Stemming from 2020 Election Challenge. From the Austin American-Statesman: “With a motion filed with the Texas Supreme Court on Friday, 18 attorneys general expressed their concern over allowing disciplinary action against Brent Webster, Paxton's first assistant attorney general, to move forward, arguing that the punishment would be a step in violating the discretion of the attorney general's office to pursue legal actions. Webster, along with Paxton, faces a disciplinary complaint from the Commission for Lawyer Discipline, a standing committee of the State Bar of Texas, based on allegations that the official filed a baseless claim before the U.S. Supreme Court in an attempt to force a delay in certifying presidential election results in Pennsylvania, Michigan, Georgia and Wisconsin.” Read more here.
#10 The Tortured Poets Department. Ok, not exactly related to legal ethics news, but Legal Ethics Roundup regulars know I’m a huge fan of Taylor Swift, whose much anticipated new album “The Tortured Poets Department” dropped at midnight Friday with an extra 15 songs at 2AM (a total of 31!). You’ll find a legal ethics insight from the album under “Wisdom for the Week” below. And revisit Roundup No. 14 for my Legal Ethics Eras Tour.
This Week in Ethics History
April 22, 1970. The first Earth Day was celebrated just over 50 years ago today. It’s a good day to consider the role of legal ethics in climate change by reading “Disclosing the Danger: Climate Change Meets Attorney Ethics,” Utah Law Review (2020) by Victor Flatt (Case Western). From the abstract:
This article suggests a novel concept in climate change law and attorney ethics law by proposing that many states’ attorney ethics laws could be interpreted to require, or at least permit, attorneys to disclose client activity relating to greenhouse gas emissions. Every state has some form of ABA Model Rule 1.6(b), either requiring or allowing attorneys to disclose client activities that result in death or substantial bodily harm. This article asserts that prior precedent surrounding this disclosure rule indicates that it could be applicable to greenhouse gas emissions. Attorney disclosures in turn, could impact a wide swath of greenhouse gas emission activity, making it more transparent, and in certain cases requiring attorneys to counsel cessation of such activities or withdraw from representation. Because there is growing climate activism seeking to use all legal tools to slow or stop greenhouse gas emissions, this attorney ethics issue could be a strategic tool to try and control greenhouse gas emissions activities. Thus attorneys from the private sector to government should be aware of the potential ethical issues they face in handling greenhouse gas related legal work.
April 24, 1995. The ABA issued Formal Opinion 95-391, Use of the Title "Judge" by Former Judge in the Practice of Law. From the abstract:
A former judge who returns to the practice of law may not continue to use the titles "Judge" or "The Honorable." He therefore may not have his telephone answered "Judge X's office," sign his correspondence and pleadings "Judge X," or have his name appear on his nameplate or the firm letterhead as "Judge X" or "The Honorable." Nor should he encourage others to refer to him as "Judge X" or "Your Honor" in the courtroom or otherwise in connection with legal proceedings.
Recommended Reading — New Book
Brad Wendel (Cornell) has a terrific new book out — Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret. From the publisher:
Lawyers take pride in a professional tradition of representing unpopular clients, understanding it as a contribution to the rule of law and the practice of toleration in a polarized society. This does not mean that lawyers are fully insulated from criticism for the clients they represent. The seemingly intractable debate over accountability for representing nasty clients is in part the result of a deep, structural tension between the institutions and procedures of the legal system, and the underlying issues and controversies about which people disagree. We also care about the attitudes and motives of lawyers, which play an important role in evaluating the actions of others. Much of the frustration experienced by lawyers who are criticized for representing unpopular clients arises from what lawyers see as the public's inability to understand the rule of law and the function of the legal system in resolving conflicts over rights and justice. Using a series of case studies, this book explores the possibility that both lawyers and their critics are right. There is genuine value in a system of formal law that aims at settling social disagreement, but that is not the whole story. Public criticism of lawyers may reflect the sense that the legal system has fallen short of ideals of fairness and inclusiveness. Many of the lawyer shaming or “canceling” episodes discussed in this book arise out of the representation of clients in matters involving issues where it appears that the official process of establishing and interpreting formal law has been captured by powerful interests. Accepting a certain amount of public criticism is necessary to avoid a dangerous isolation of the legal profession from accountability to the broader political community, or from the humanity of lawyers being submerged by their professional role.
Get your own copy here.
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.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Attorney Advisor - Employment/Ethics Counsel, Office of Community Oriented Policing Services — Washington D.C. Responsibilities include compiling and editing policy and legal materials related to ethics to ensure conformity with legal requirements; developing internal and external ethics reports; leading representation of the office at DOJ ethics forums and meetings; and more. Learn more here.
Conflicts & Ethics Attorney, King & Spalding — remote. Responsibilities include review of the firm’s new business intake forms and related documents, including conflict reports and engagement terms to identify and resolve business and ethical conflicts and to ensure compliance with firm policies before matter opening. Learn more here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
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
“So, they killed Cassandra first ‘cause she feared the worst. And tried to tell the town.” — Taylor Swift, “Cassandra,” The Tortured Poets Department
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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