LER No. 41 - 2nd Graders Sworn In as Jurors, Judges' Travel + Workplace Culture, More Bad Romance, When "Legal Fees" Aren't Legal Fees, Ethics History, Jobs, Events & More (05.06.24)
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 Chicago! The University of Chicago Class of 1999 celebrated our 25 year reunion over the weekend. Not sure how that is possible?!? But it was wonderful to catch up with classmates. I also spent time in the Hanna Holborn Gray Special Collections Research Center at the University of Chicago Library digging through archives for a couple of projects I’m working on. One expands on my previous writing about Soia Mentshikoff, the first female law professor at the University of Chicago Law School. She’s among the women profiled in my book Shortlisted: Women in the Shadows of the Supreme Court and I share more personal reflections about her in this short essay, Becoming Visible. After digging through archives, I wandered campus and witnessed the protest encampment on Friday afternoon. Here’s coverage about negotiations between students and the administration from the Chicago Sun Times. And for more on lawyer and law student involvement in protests on campuses across the country, revisit Roundup No. 40, Headline #1.
Last week, I also spoke with reporter Tom Dreisbach on NPR’s Morning Edition about financial disclosures for judges, and why transparency matters not only to individual litigants but to the public. Listen to his coverage here. Carrie Johnson and Dreisbach have been doing some important reporting on judicial accountability. More on that below under “Accountability in Our Democracy.”
For now, let’s look back at last week’s headlines.
Highlights from Last Week - Top Headlines
#1 When “Legal Fees” Aren’t Legal Fees. From the Washington Post: “Prosecutors say Trump falsely recorded payments to his then-attorney Michael Cohen as a legal retainer instead of what they really were: reimbursement for the payoff to Daniels.” Read more here.
#2 SCOTUS May Consider Recusal for Judge Who Served as Prosecutor. From Law360: “The Association of Professional Responsibility Lawyers urged the U.S. Supreme Court to review a D.C. Circuit judges decision not to recuse himself from a former al-Qaida member’s case, saying the judge’s refusal undermined ethical standards for judges.” Read more here. I joined an amicus brief led by Bruce Green (Fordham) and others making a similar argument that a former prosecutor can’t later participate as the judge in the same case. The Center for Ethics and the Rule of Law at the University of Pennsylvania and the National Institute of Military Justice also filed an amicus brief.
#3 Judge Swears In Second Graders as Jurors to Decide Case. From Oregon Live: “A Clackamas County judge this week decided to give a hands-on civics lesson to a class of visiting second graders, inviting eight of them to serve as jurors in a hit-and-run trial, swearing them in, allowing them to sit in the jury box and giving them supplies to take notes.” Read more here.
#4 More Bad Romance. From Bloomberg Law comes a two-part series on the fallout over the revelation that former federal bankruptcy judge David Jones and bankruptcy lawyer Elizabeth Freeman did not disclose their long-term romantic relationship. Here’s part one: “Sex, Secrets Trigger Downfall of Star Texas Bankruptcy Judge.” And here’s part two: “How Four Judges Kept Romance Allegations Quiet for Two Years.”
#5 Judge Sanctioned After Handcuffing Teen to “Scare-Straight.” From the ABA Journal: “A federal judge who ordered a defendant’s daughter handcuffed to warn her about the consequences of drug use has been reprimanded by the judicial council of the 9th U.S. Circuit Court of Appeals at San Francisco. Senior U.S. District Judge Roger T. Benitez of the Southern District of California was reprimanded in a May 1 order. The judicial council concluded that Benitez, an appointee of former President George W. Bush, used ‘misguided and inappropriate methods’ in an attempted scared-straight approach that constituted judicial misconduct.” Read more here.
#6 Disbarment Sought for Clark. From Bloomberg Law: “Disbarment is ‘the only possible sanction’ for former Trump administration official Jeffrey Clark, DC Bar officials said in a filing Monday. Clark, a former US assistant attorney general, in late 2020 tried to get Justice Department superiors to send a letter to Georgia officials improperly questioning the election outcome, three lawyers for the bar wrote. Clark engaged in a ‘dishonest attempt to create national chaos on the verge of January 6,’ the lawyers led by DC Disciplinary Counsel Phil Fox wrote.” Read more here.
#7 Eastman Remains Suspended from Law Practice. From Politico: “A judge in California turned down an urgent plea Wednesday from John Eastman — an architect of Donald Trump’s bid to subvert the 2020 election — to allow him to keep practicing law while he fights an effort to permanently revoke his license. Judge Yvette Roland recommended Eastman’s disbarment in March after finding he repeatedly breached legal ethics in service of Trump’s scheme to stay in power. Though her ruling is not the final word — and Eastman plans to appeal — it triggered an automatic suspension of Eastman’s license.” Read more here.
#8 Lawyers & AI. From Newsweek: “Artificial intelligence (AI)'s emergence and stunning popularity in the legal sphere raises the question of whether it's ethical for lawyers to use AI tools in their practices. There is little doubt that AI, like all technology, can be misused. Attorneys citing non-existing cases is but one well-known example. Innovation has created challenges for the law before. Attorneys were skeptical about technological advances such as electronic legal research and e-discovery, yet those issues have largely been mitigated and are integral to law practice. Artificial intelligence is here to stay, so it's up to leaders in law to help establish guidelines that ensure AI tools remain ethical. This month, the New York State Bar Association issued a 92-page report on the use of AI in law practice, highlighting many of the challenges and providing recommendations and guidelines to avoid issues.” Read more here.
#9 Suspended Judge Runs Again. From Law360: “A Detroit judge suspended by the Michigan Supreme Court for ‘repeated, deliberate misconduct’ is running for an open judicial seat at her former court in the August primary election. Kahlilia Yvette Davis filed paperwork for the open judicial seat in the 36th District Court in Wayne County on April 23, according to the Michigan secretary of state's website. That's despite a June ruling from the state Supreme Court that even if she is elected to the bench during her six-year suspension, she will ‘nevertheless be debarred from exercising the power and prerogatives of the office until at least the expiration of the suspension.’" Read more here.
#10 “The Madness of the Lawyer Fee-Sharing Ban.” From Lucian Pera in the ABA Law Practice Magazine: “It’s time to re-think the long-standing notion that the ban in fee-sharing with nonlawyers protects lawyer professional independence in some important way. The ban on fee-sharing has been lifted in Arizona but remains in place elsewhere. Arizona's move prompts a reconsideration of traditional regulatory norms and may signal a broader shift in legal practice.” Read more here.
This Week in Ethics History
May 6, 1882. President Chester Arthur signed the Chinese Exclusion Act, the only legislation in our country’s history to suspend immigration based upon nationality. You might revisit this history by reading Shoba Sivaprasad Wadhia’s (Penn State) article “Discretion and Disobedience in the Chinese Exclusion Era.” Professor Wadhia “examines the use of prosecutorial discretion from its first recorded use in the nineteenth century to protect Chinese subject to deportation, following to its implications in modern day immigration policy.” Download the article here.
May 11, 2005. The ABA issued Formal Opinion 05-436, “Informed Consent to Future Conflicts of Interest.” Here’s the abstract:
The Model Rules contemplate that a lawyer in appropriate circumstances may obtain the effective informed consent of a client to future conflicts of interest. General and open-ended consent is more likely to be effective when given by a client that is an experienced user of legal services, particularly if, for example, the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. Rule 1.7, as amended in February 2002, permits a lawyer to obtain effective informed consent to a wider range of future conflicts than would have been possible under the Model Rules prior to their amendment.
Recommended Reading — New Scholarship
This week’s recommended pieces both consider legal ethics in the context of access to justice.
“The Making of the A2J Crisis,” by Nora Freeman Engstrom & David Freeman Engstrom. From the introduction:
After decades of neglect, access to justice has roared onto legal and political radars, fueled by a growing realization—first among lawyers but increasingly among the wider American public—that the civil justice system is in crisis. In roughly three-quarters of the 20 million civil cases filed in state courts each year, one side lacks a lawyer—a dynamic that poses a direct challenge to the system’s adversarial core. And these are the cases and litigants we can see. Beneath them lies a larger but hidden crisis. It consists of tens of millions more Americans who face genuine legal problems but take no formal legal action to protect their interests. As this double-layered calamity has come into focus, state supreme courts, bar associations, and even the crusty American Law Institute are taking note.
Just as most agree the status quo is not tenable, a consensus is forming around possible fixes. The usual menu begins with the obvious and (mostly) uncontroversial: more legal aid, more pro bono, and system simplification so that even those without lawyers can navigate it. The menu continues with more ambitious (and more controversial) reforms: relaxing unauthorized practice of law (UPL) restrictions to admit non-lawyers into the system; greater reliance on technology, from Zoom hearings and online dispute resolution (ODR) platforms to new tech-enhanced form-filling and filing systems; more experiments with discipline-spanning service models, such as “medical-legal partnerships”; and even reorienting the judicial role to something more active and “inquisitorial.”
At the far end of the continuum sit reforms that are even more ambitious—and likely unachievable in their idealized forms. Think here of a full-fledged constitutional right to counsel, known as “civil Gideon”; “delegalization,” which would remove certain case types entirely from court cognizance; or a fortified welfare state to better insulate people from income shocks, which would avoid civil justice entanglement in the first place. … In this Essay, we take a different tack. Rather than look forward, we look back. In particular, we ask: How did we get here? How did we reach a point where a majority of civil cases pit represented parties against unrepresented ones? How can it be that the modal case in all of American law-dom is a debt collection action? Has it always been this way—and, if not, what has precipitated the current crisis?
"Re-Regulating Justice: Realizing Housing Stability Through Community Legal Advocacy" by Antonio Coronado, Rachel Crisler, Cayley Balser, and Stacy Jane. From the abstract:
The most common type of housing-related legal problem experienced by low-income Americans is eviction. As evidenced by the growing body of social science data and record of communities’ lived experiences, the magnitude of eviction’s impact in this country cannot be overstated. For tenants facing eviction, receiving legal services can be the difference between staying housed or suffering the long-lasting effects of eviction on their well-being and community. But the reality is that 92% of low-income community members receive no legal help when faced with civil legal issues like eviction. Nascent regulatory reform efforts, like Innovation for Justice’s (i4J) Housing Stability Legal Advocate (HSLA) Initiative, aim to address this linked crisis of housing and access to legal power by disrupting artificial barriers to the work of justice-making. In centering communities, HSLA bridges the access to justice gap to re-regulate the face of justice.
This article explores the ways that i4J has leveraged regulatory reform to equip non-lawyer community advocates with the tools necessary to provide upstream, trauma-informed, limited-scope legal advice to the low-income community members they already serve. In reflecting on our work as the nation’s first and only cross-discipline, cross-institution, cross-jurisdiction, and social-justice-oriented legal innovation lab, this piece discusses the imperative of realizing a future where housing stability is our profession’s priority–not just an afterthought. As part of the broader movement to rethink how and for whom justice works, this article underscores the urgency of centering those closest to the harms of our legal system in facilitating its reimagining.
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.
Back in 2021, when I testified before Congress about the Wall Street Journal’s reporting that exposed dozens of federal judges who failed to comply with financial disclosure rules, I said this:
We should not have to rely on journalists for the enforcement of judicial ethics and conflicts of interest rules, although we should welcome such investigations.
I called for the judiciary to “lead in enforcing its own ethical and legal obligations” and if it refuses, for Congress to “take steps to encourage and demand this accountability.” As I explained to the House Judiciary Committee:
A rule on the books is easily ignored when there is no consequence to its violation. Transparent, aggregated data about recusals, made easily available to the public at no cost, would be a powerful enforcement mechanism. Access to this sort of information facilitates prevention through accountability and education. … The culture of silence should be replaced with a culture of compliance.
(Read my full testimony here.)
Unfortunately, we find ourselves three years later still relying on journalists for the enforcement of judicial ethics. Fortunately, reporters continue devoting their time and resources to this work. One recent effort comes from National Public Radio’s Tom Dreisbach and Carrie Johnson. Their reporting focuses on both workplace culture and financial/travel disclosures. Listen to the NPR Politics Podcast “Exposé: Hostile Workplaces And Undisclosed Free Trips In The Federal Judiciary” to learn more (16 minutes).
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Conflicts Counsel, Eversheds Sutherland — Remote. Responsible for assessing and resolving potential conflicts for new business intake and incoming lateral attorneys. Learn more here.
Conflicts Resolution Attorney, Morrison Foerster — San Francisco, New York or 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. The attorney will also supervise conflicts staff. 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 8 — American Bar Foundation Conference “Emerging Insights from Access to Justice Research: Translating Ideas into Action.” Free online or in-person at Wayne State University, Detroit. 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
“No worthwhile human activity can be completely defined by legal rules.”
— 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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