LER No. 40 - Hot Mike Recusal, Protests + Lawyers/Law Students, Senators Ask ABA About Rape Qs, AZ Indicts More Lawyers, Title VII & Judiciary, MN Court Majority Female, Jobs, Events & More (04.29.24)
LER No. 40 - Hot Mike Recusal, Protests + Lawyers/Law Students, Senators Ask ABA About Rape Qs, AZ Indicts More Lawyers, Title VII & Judiciary, MN Court Majority Female, Jobs, Events & More (04.29.24)
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 Missoula, Montana! What a terrific town - did you know there are five different yoga studios all within a 10-15 minute walk from the University of Montana? I think that tells you a lot about a place. (I managed to visit three over the weekend: Inner Harmony Yoga, Hot House Yoga, and Ritual Yoga.) This was my first visit to Montana and I loved discovering Big Sky Country. I made the trip to attend the investiture of a law school classmate. Judge Anthony Johnstone was confirmed for the U.S. Court of Appeals for the Ninth Circuit last year, and it was an honor to witness his official swearing-in. Read more about that here. (Plus the trip allowed me to check the box on another state — I’m now down to New Hampshire, North Dakota, South Dakota, and Wyoming as the only states I haven’t visited — give me a reason check these off too!)
And now let’s look back at last week’s headlines.
Highlights from Last Week - Top Ten Headlines
#1 Lawyers, Law Students, and Recent Campus Protests. Lots of news to report on this front, which is why it is Headline #1 this week. Here’s a sampling of the coverage:
From the Austin American-Statesman - UT-Austin Students Hold Pro-Palestinian Protest; At Least 50 Arrested. “About 54 people were being held at the Travis County Jail in relation to the protest, according to George Lobb, an attorney with the Austin Lawyers Guild who was assisting people who had been arrested.” Read more here.
From the Daily Pennsylvanian - Inside the Programming of the Pro-Palestinian Encampment on Penn's College Green. “At around 12 p.m., approximately 30 protesters participated in a training from the National Lawyers Guild on College Green. A member of the National Lawyers Guild told the group that the organization is there to provide legal support, emphasizing that guild members are all volunteers.” Read more here.
From CBS News - Pro-Palestinian Demonstrators at UC Berkeley Demand Action from University. “Malak Afaneh, a law student at the University of California and the daughter of Palestinian immigrants, was among over a hundred pro-Palestinian protesters who have setup camp outside Sproul Hall on the Berkeley campus. Their message is clear: they demand a ceasefire in Gaza and divestment action by UC.” Read more here.
From The Intercept - Columbia Law School Faculty Condemn Administration for Mass Arrests and Suspensions. “On Sunday, 54 Columbia Law School professors sent a letter to university leadership condemning the school’s decision to summarily suspend student protesters and to authorize a police raid on campus. The procedural irregularity of the mass suspensions, the lack of transparency about how decisions were made, and the involvement of the New York Police Department threaten the university’s legitimacy internally and in the eyes of the public, the faculty charge. ‘While we as a faculty disagree about the relevant political issues and express no opinion on the merits of the protest, we are writing to urge respect for basic rule-of-law values that ought to govern our University,’ reads the letter, whose signatories are permanent members of the law school faculty.” Read more here.
#2 Two New Lawyers Indicted in Arizona for Election Challenges + Several Indicted Yet Again. From the Associated Press: “Authorities revealed Friday the conspiracy, fraud and forgery charges filed against an ex-aide of former President Donald Trump and four attorneys in Arizona’s fake elector case, but the names of former Trump chief of staff Mark Meadows and lawyer Rudy Giuliani remained blacked out. The Arizona attorney general’s office released a copy of the indictment that revealed nine felony counts had been filed against Mike Roman, who was Trump’s director of Election Day operations, and attorneys John Eastman, Christina Bobb, Boris Epshteyn and Jenna Ellis.” Read more here. Bobb is senior counsel to the Republican National Committee’s election integrity team, a “certain irony — if not outright conflict,” as noted by the Washington Post. For a reminder about other lawyers facing consequences for their representation of the former president, see this list published last week in Forbes, which includes Michael Cohen, Alina Habba, and Cleta Mitchell.
#3 SCOTUS Declines Appeal on PA Bar Harassment and Discrimination Rule. From Reuters: “The U.S. Supreme Court on Monday declined to hear an appeal from a Pennsylvania lawyer who challenged an anti-harassment and anti-discrimination professional rule for lawyers in the state. Zachary Greenberg, an attorney with the non-profit Foundation for Individual Rights and Expression, sought to revive his lawsuit opposing the rule, which prohibited lawyers from knowingly engaging ‘in conduct constituting harassment or discrimination’ based on race, sex, religion and other grounds. The 3rd U.S. Circuit Court of Appeals in August said Greenberg lacked standing to sue because he had not shown that the rule threatened his constitutional free speech rights. The state bar rule covered ‘only knowing or intentional harassment or discrimination against a person’ and did not apply to Greenberg, the 3rd Circuit held.” Read more here. (Revisit past LER coverage at Roundup No. 28, Headline #2 and Roundup No. 6, Headline #3.)
#4 Thomas Refuses to Recuse Again. From CNN: “Amid calls for Justice Clarence Thomas to recuse himself from a high-stakes case over whether Donald Trump has presidential immunity from criminal prosecution, the conservative jurist has made clear that he doesn’t plan to step aside – or even respond publicly to the appeals from Democrats and others. The justice’s critics are all citing past efforts by his wife, Virginia ‘Ginni’ Thomas, to reverse the 2020 presidential election in Trump’s favor and her attendance at the rally Trump held on January 6, 2021, shortly before the US Capitol attack. … Judicial ethics experts say that Thomas at least has an obligation to explain his decision not to recuse himself given the precedent set by other justices in the past.” Read more here.
#5 Senators Question Character and Fitness Rape Questions. From Law360: “Several members of the Senate Judiciary Committee wrote to the American Bar Association on Friday urging it to study how state bar applications require would-be attorneys to disclose sexual violence.” Read more here.
#6 Judge Recuses Over Hot Mike Comments. From the Dallas Morning News: “A Dallas County judge declared a mistrial in a murder case Wednesday after she was caught on a courtroom livestream making disparaging remarks about the accused man’s guilt, according to footage obtained and reviewed by The Dallas Morning News. Judge Nancy Mulder told The News on Wednesday she voluntarily recused herself from two pending cases against Jorge Esparza over comments she made Tuesday — the first day of his trial.” Read more here.
#7 Minnesota Returns to a Female-Majority Supreme Court. From Governing.com: “Minnesota Gov. Tim Walz appointed two women to the state Supreme Court on Monday, April 22, returning the court to a female majority for the first time since 1994. Court of Appeals Judge Theodora Gaïtas and Stearns County Chief Judge Sarah Hennesy will fill the seats held by retiring Justices Margaret Chutich and G. Barry Anderson, respectively. Both new justices have extensive experience in aiding lower-income citizens with criminal, appellate and civil matters.” Read more here.
#8 Lessons in (In)Civility. From the ABA Journal: “Alex Spiro, a partner with Quinn Emanuel Urquhart & Sullivan, may have given some responses that ‘were pointed at times’ during a deposition of his client Tesla CEO Elon Musk. But it was in response to the opposing lawyer’s ‘insults, shouting, interruptions and violations’ of a court order, according to the law firm’s opposition to a sanctions motion. Sanctions against Spiro are unwarranted, and his client should be granted fees and costs for fighting the motion, according to the April 18 document filed by Quinn Emanuel in Travis County, Texas. The opposing lawyer who sought sanctions, Mark Bankston, was also acting badly at the deposition, the motion says. Bankston ‘descended into schoolyard antics, like yelling, interrupting the witness and insulting opposing counsel in exceedingly personal terms—a tactic he deploys again in his motion for sanctions, calling Mr. Spiro, an accomplished trial lawyer, a celebrity attorney,’ the motion for Spiro says.” Read more here.
#9 UK Post Office Scandal May Bring In-House Counsel Ethics Reforms. From the Financial Times: “More than 900 people were convicted of a range of offences, including theft and false accounting, in cases involving data from Fujitsu’s flawed Horizon system, which was introduced in 1999. More than 700 prosecutions were brought by the Post Office itself. However, it was another lawyer — James Hartley, partner and head of dispute resolution at law firm Freeths — who represented 555 of the sub-postmasters in a landmark 2019 High Court case in which the extent of the IT scandal emerged. The judge ruled that several ‘bugs, errors and defects’ meant there was a ‘material risk’ that the Horizon system was to blame for faulty data used in the Post Office prosecutions. … Now, a public inquiry into the scandal is gaining momentum as it takes evidence from senior Post Office executives, government ministers and figures from Fujitsu, ahead of its conclusion this summer. In the coming months, the inquiry will hear testimony from several former general counsel at the Post Office, each of whom will give evidence against the backdrop of a debate about whether the role of an in-house lawyer needs to be more strictly regulated.” Read more here.
#10 Should Title VII Should Apply to Federal Courts? From Aliza Schatzman in Balls and Strikes: “If you graduate from law school and go work for a law firm, and you’re bullied, sexually harassed, or retaliated against by your employer, your first move is probably filing a complaint with human resources. If that fails, you might explore your options under Title VII of the Civil Rights Act of 1964, a federal law that protects employees against workplace discrimination based on race, color, religion, sex, and national origin. These laws protect most government employees, too; as of 1995, under the Congressional Accountability Act and the Presidential and Executive Office Accountability Act, Hill staffers and White House staffers can also sue to enforce their rights. The federal judiciary, however, is exempt from Title VII. So if you’re a law school graduate fortunate enough to land a judicial clerkship—a coveted stepping-stone to prestigious jobs in academia or public service, or a lucrative private practice career—and you’re mistreated by a judge, you have no legal recourse for harms done to your career, reputation, and future earning potential. Right now, judges are above the laws they enforce.” Read more here.
This Week in Ethics History (Protests Version)
May 4, 1961. The first “Freedom Ride” took place, one of many political protests against segregation. From WBUR.org: “Starting in May of 1961, more than 400 black and white Americans tested Jim Crow laws in the deep South by riding buses together and sitting in segregated waiting rooms. They encountered widespread violence. The Kennedy administration was at first at a loss as to how to respond. Robert Saloschin, who was then a lawyer with the Justice Department's Office of Legal Counsel, came up with the strategy of having the department petition the Interstate Commerce Commission to order desegregation of buses and terminal waiting rooms.” Listen to the interview with Saloschin here.
May 4, 1970. Four students were killed, with nine more wounded, when members of the Ohio National Guard fired into a crowd of Kent State University protestors. Read the reflections from Sanford Jay Rosen, the lead lawyer for the victims, here. Among his conclusions is this: “I think it is likely that the Kent State tragedy would not have happened if Gov. James Rhodes, Vice President Spiro Agnew, and President Richard Nixon had not used incendiary rhetoric to demonize the antiwar demonstrators at Kent State and many other colleges around the country.” This reminds me of advice from my dean at the University of Houston, Len Baynes, about the best way to educate students - he tells us to “shed light, not heat.”
April 29 - May 4, 1992. Protests occurred throughout Los Angeles after four white police officers were acquitted of charges related to the beating of Rodney King. Revisit this history and then-attorney general William Barr’s role by reading Lonnie Brown’s (Tennessee) article Civil Unrest and the Role of the Attorney General: A Comparison of Ramsey Clark to William Barr.
Recommended Reading — New Scholarship
“Representing Animals,” forthcoming in the Maryland Law Review, by Matthew Liebman (University of San Francisco School of Law). From the abstract:
Perhaps the most central role of a lawyer is to represent her clients – to speak on their behalf and to act in their stead. Representational relationships require lawyers to understand what their clients think, need, and desire and to faithfully advocate for them. But representation is not a simple act of transposition or reiteration. In representing others, lawyers engage in a range of interpretive practices and make myriad evaluative judgments. This translational practice complicates representation. The act of representing others, especially members of a group to which the representative does not belong, raises important epistemological, ethical, and political challenges. Speaking for others, even when well-intentioned, risks reproducing hierarchy and domination by situating the other as an object of pity who must be spoken for. Yet there is no space outside of representation to retreat to. Representation is a central site of social struggle. Through the legal claiming of rights and power, representation can be an indispensable and liberatory weapon against exclusion and oppression. Representation, including legal representation, is thus simultaneously dangerous and necessary.
This Article evaluates the ethics of legal representation in one of its most underexplored and complicated contexts: cases involving nonhuman animals. Animals are increasingly represented in law, both directly as clients and indirectly as the beneficiaries of social movement lawyering. On the one hand, representing animals seems an impossible task, given the untranslatability of animals’ voices and the presumptuousness of speaking for them. On the other hand, our relentless exploitation of nonhumans demands representational interventions, including the legal representation of animal clients and the informal representation of animals’ interests though social movement lawyering. Despite the significant stakes of this dilemma, the ethics of animal legal representation are largely untheorized. Working with theories of lawyer accountability, including the Model Rules of Professional Conduct and critical approaches to cause lawyering, the Article offers a framework for taking responsibility for the thorny ethical issues that arise in representing nonhumans, who we cannot fully comprehend, yet whose voices cry out for justice.
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 work of the Institute for the Advancement of the American Legal System (IAALS) which released its annual report last week. The work done by IAALS helps advance the legal profession’s accountability in our democracy. From IAALS CEO Brittany Kauffman: “The world at large is constantly evolving, and so must our civil justice system. IAALS is uniquely positioned to bring that change. Our nonpartisan, independent approach cuts through the noise that consumes our modern society and empowers data-backed, people-centered innovations that are taking hold in courts, in law schools, and within the legal profession across the country. IAALS is focused on improving how our system serves people today, while also anticipating and preparing for future needs.” Download the annual report here to learn more.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Conflicts & Ethics Counsel, Hall Render — Dallas, Denver, Indianapolis, Milwaukee, Raleigh, Troy, and Washington D.C. Responsibilities include championing ethical practices across the firm’s offices; providing expert guidance and support on client engagement and conflicts; and more. Learn more here.
Attorney III, State Bar of California — Los Angeles. Responsibilities include providing comprehensive substantive and procedural legal counsel and advice to the Client Security Fund and Client Security Fund Commission. 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
“As a public citizen, … a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” — Preamble, ABA Model Rules of Professional Conduct
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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