LER No. 42 - Pulitzer Awarded for Judicial Ethics Reporting, SCOTUS Justices Talk Ethics (Sort Of), Clerk Hiring Bans, Judicial Speech Restrictions, Ethics History, Jobs, Events & More (05.13.24)
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
Welcome
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Hello from Lake Michigan! Our family spent Mother’s Day weekend in northern Michigan and while we missed the most spectacular views of the Northern Lights, we did catch a glimpse of purple as the sunset faded on Saturday night. After witnessing 94% totality of the April eclipse in Houston, I’m inspired to pay more attention to what’s happening in the sky. With reports of Northern Lights viewings across the country as far south as Alabama, Florida, and parts of California, and around the globe, I hope you caught a glimpse of the Northern Lights too. If not, check out these stunning images from the U.S. and beyond. Now for some stunning ethics headlines…
Highlights from Last Week - Top Headlines
#1 ProPublica Wins Pulitzer Prize for Judicial Ethics Reporting. From Politico: “ProPublica received the Pulitzer Prize for public service on Monday for a series of articles on lavish gifts to Supreme Court justices that brought unprecedented scrutiny to the high court. The award, considered among the most prestigious in journalism, was one of 15 Pulitzers bestowed on news organizations … .” Read more here. This is a big deal, and I have more to say about it under “Accountability in Our Democracy,” below.
#2 Lots of SCOTUS Justices Gave Public Talks, Some About Ethics. Last week four justices made public appearances to talk about ethics, among other topics (including Taylor Swift!), giving you several headlines for #2. First, from CNN: “Brett Kavanaugh speaks about presidential power, his Taylor Swift fandom and an expensive trip to see Caitlin Clark.” Second, from Axios: “Clarence Thomas makes most substantial public comments since ethics probe.” Third, from Bloomberg Law: “Sotomayor Says AI Will Significantly Impact ‘How We Lawyer’.” Fourth, from The Hill: “Alito warns of ‘declining’ support for free speech on college campuses.” Finally, while he didn’t give a speech or interview this week, Justice Neil Gorsuch announced a new book. From ABC News: “Supreme Court Justice Neil Gorsuch co-authors book on laws, ‘Over Ruled.’“
#3 Willis Conflict Will Be Taken Up on Appeal. From the Washington Post: “A Georgia appellate court on Wednesday agreed to hear Donald Trump’s appeal of a state court ruling allowing Fulton County District Attorney Fani T. Willis (D) to continue prosecuting the election interference case against the former president and several allies, making it increasingly unlikely the case will go to trial before the November election. … The Trump filing asked the court to reverse a decision by Fulton County Superior Court Judge Scott McAfee, who said in a March 15 order that Trump and the others had ‘failed to meet their burden’ of proving that Willis’s romantic relationship with special prosecutor Nathan Wade and allegations that she was financially enriched by trips the two took together were enough of a ‘conflict of interest’ to disqualify her from the case.” Read more here.
#4 Judicial Candidate Sues to Discuss Abortion in Georgia. From the Associated Press: “A former Democratic congressman running for Georgia State Supreme Court filed a federal lawsuit Monday claiming a state agency is unconstitutionally trying to block him from talking about abortion. John Barrow sued hours ahead of a deadline to reply to a complaint that he is violating state judicial ethics rules and that he must bring his campaign ads into compliance with state rules. Among the rules the Georgia Judicial Qualifications Commission complaint alleges Barrow is violating is one that bars candidates from making commitments about how they will rule on issues that are likely to come before the high court.” Read more here.
#5 Recusal Sought in FTC Noncompete Case. From Reuters: “A progressive watchdog group says a Texas federal judge should recuse himself from a lawsuit challenging the U.S. Federal Trade Commission's ban on noncompete agreements commonly signed by workers because he owns stock in tech companies that would benefit if the rule is struck down. U.S. District Judge J. Campbell Barker in Tyler, Texas, owns up to $500,000 of shares in Apple, up to $100,000 in IBM and a smaller amount in Amazon.com, according to financial disclosure reports, all companies that have been involved in litigation over their use of noncompete agreements. Those investments are sufficient to disqualify Barker from presiding over a challenge to the FTC rule filed last month by the U.S. Chamber of Commerce, the nation's largest business lobby, and other business groups, said Liz Zelnick of Accountable.US, which conducts research on the relationships between government and special interest groups.” Read more here.
#6 Latest Filing from Eastman Challenging Inactive Bar License Status. From Luke Johnson on Twitter/X: “John Eastman’s MOTION TO STAY THE COURT'S ORDER PLACING HIM ON INACTIVE ENROLLMENT. Filing with Declarations from Matt Gaetz, Marjorie Taylor Greene & others. 50-page filing reveals other cases Eastman is involved with.” Here’s a link to download the filing.
#7 “Don’t Use Your Client’s Confidential Information for Your True Crime Novel.” From David Kluft (MA Office of Bar Counsel) on LinkedIn: “A WI lawyer’s client was convicted of murder. He wrote to her in jail offering to forgive a $19,000 bill if she waived attorney client privilege so he could publish book about the case. He threatened to sue her grandparents if she didn’t sign. She didn’t sign. The lawyer self-published a book about the case, chock full of client confidential information. License revoked.” Read more here. Download the opinion here.
#8 PA Judge Sanctioned for Partisan Facebook Posts. From Dave Hoffman (Penn Law) on Twitter/X: “PA’s judicial conduct board has sanctioned a trial court judge for partisan Facebook posts, in an opinion resolving the issue for the first time in the State, and which is sure to be appealed.” Read the opinion here.
#9 The Ethics of Clerkship Hiring Bans. From the Wall Street Journal: “Against the backdrop of campus protests, a group of federal judges appointed by former President Donald Trump say they will blackball graduates of Columbia University, ratcheting up a pressure campaign against schools they deem hostile to conservatives.” Read more here. This headline generated lots of commentary both for and against the ban, but I thought Aliza Shatzman (Legal Accountability Project) offered the most helpful commentary by putting this latest declaration about hiring into a larger context. As she wrote in Above the Law: “This manufactured controversy is just another example of the lack of transparency and equity in clerkship hiring. While most federal judges do not resort to attention-seeking tactics, many do prioritize or deprioritize certain law schools — and other characteristics — in their hiring decisions. This lack of transparency not only perpetuates inequity, but also undermines the integrity of the judiciary.” Read more from Shatzman here. (And yes, she’s also featured in Headline #10 this week - Shatzman’s been busy!)
#10 “Meet the Lawyer Who's Trying to Flag Judges Who Harass Their Clerks.” From National Public Radio: “Aliza Shatzman is devoting herself to giving judges a hard time. She spends a lot of time fielding complaints from law clerks, who tell her stories about bullying, gender discrimination and harassment. She said those complaints come from mostly young law school graduates at the start of their careers who have few places to turn inside the federal judiciary to report their concerns anonymously. That's why she's created a database to gather such stories and warn students about hostile situations, before it's too late.” Read more here. (This article is part of the reporting from NPR’s Carrie Johnson and Tom Dreisbach, featured in last week’s Roundup and discussed again below under the “Accountability in Our Democracy” section.)
Regulatory Reform Watch
Last week, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued ABA Formal Ethics Opinion 511 - “Confidentiality Obligations of Lawyers Posting to Listservs.” Here’s the overview:
Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved. A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation.
You can download the full Opinion here. The release created quite a stir among legal commentators, both about the substance and the timing. This headline from Bob Ambrogi at LawSites sums it up well: “ABA Issues Ethics Opinion on 30-Year-Old Technology whose Use Is Waning. My Question: Why Now?” Here’s a sampling from his post: “When the American Bar Association’s ethics panel finally got around to issuing an opinion on lawyer blogging in 2018 — a full two decades after lawyers had started blogging — it conjured for me the image of Rip Van Winkle, who fell asleep in 1769 and awoke 20 years later, having slept through the Revolution. … Now, the ABA has done itself one better, coming out with an ethics opinion on lawyers’ use of listservs — even though lawyers have been engaging with one another on listservs for roughly 30 years.” Read more here. For other observations, see “The ABA Issues a (Somewhat Dubious) Formal Opinion Regarding the Dissemination of Case-Related Information on ListServs,” from Steve Herman (link here) and comments on LinkedIn from Jim McCauley, who worries about the Opinion’s “chilling effect on the lawyer's use of a valuable tool that serves a useful function in educating lawyers” (link here).
This Week in Ethics History
May 17, 1954. The U.S. Supreme Court unanimously ruled in Brown v. Board of Education of Topeka that racial segregation in public schools was unconstitutional, a victory secured by then-lawyer Thurgood Marshall. Read about the “culture of lawyers” behind Brown in Stephen Yeazell’s (UCLA Law) Vanderbilt Law Review article “Brown, the Civil Rights Movement, and the Silent Litigation Revolution” (download here).
May 14, 1969. U.S. Supreme Court Justice Abe Fortas submitted his resignation under the threat of impeachment. The opening and closing paragraphs of his letter to Chief Justice Earl Warren are featured below. Download the entire four page letter here.
Recommended Reading — New Scholarship
“Partisan Judges,” by Steve Leben (UMKC Law). From the abstract:
Judges generally deny that they have a political role, as Justice Stephen Breyer did with a book and book tour shortly before he left the bench. But law is the central product of politics, and law is how government organizes itself. Everyone but judges—even the public—now recognizes openly that judges are political, and today's politics are partisan. Judges should acknowledge that the values and political views of judges do matter. But those who select judges should be looking for people who have humility and an ability to work with others, even as both parties also look for judges who are generally likely to advance positions favored by them. Doing so will further court legitimacy by enhancing procedural justice, improve the administration of justice, and likely increase the long-term viability of a judge's contributions to the law.
“Interpreting Ethics Rules,” by Sam Levine (Touro University). From the abstract:
This Article explores the interpretation of ethics rules through the prism of two rules that have been the subject of ongoing controversy and contention: Rule 4.2, the “no-contact” rule, which prohibits a lawyer from communicating with a represented client absent the consent of that client’s lawyer, and Rule 8.4(g), which prohibits various forms of discrimination and harassment.
Each of these rules provides a model for a wider examination of different interpretive approaches to ethics rules, grounded in different attitudes toward the features and functions of ethics codes. Specifically, the debate revolving around Rule 4.2 illustrates competing approaches to interpreting a rule that appears clearly articulated but, if applied as stated, would defy the similarly clear purpose of the rule, while Rule 8.4(g) has elicited sharply contrasting approaches to the interpretation and application of broadly articulated ethics rules.
The Article concludes that, while divisions over the interpretation of ethics rules may not prove inherently problematic, the relative lack of attention to the examination of interpretive approaches to ethics rules remains striking, particularly in light of the central role of the rules both in the regulation of lawyers and as expressions of the ethical norms of the legal profession. Thus, without expecting or proposing uniformity, the Article represents an effort to promote further discussion and consideration of interpretive attitudes and approaches to ethics codes and ethics rules, encompassing issues of vital importance to the legal community.
Accountability in our Democracy — The Role of Journalists
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, this section featured nonprofit organizations working to improve lawyer and judicial ethics. For an easy-to-access overview, see Roundup No. 31.
Last week we explored the role of journalists in holding lawyers and judges accountable, featuring recent reporting from National Public Radio’s Tom Dreisbach and Carrie Johnson. (Their efforts continued to make headlines, as noted above. And they are still collecting stories if you have one to share about being harassed or bullied while working for a judge.) I’ve commended reporters devoted to these efforts in my testimony to Congress about judicial ethics reform, and I am working on a law review article about the role of journalists in ethics accountability. So, as you might imagine, I was impressed and intrigued to learn that a Pulitzer Prize was awarded for investigative journalism on judicial ethics.
As reported by WBUR’s Here and Now: “The nonprofit news organization ProPublica received the Pulitzer Prize for Public Service journalism for its investigation into politically connected billionaires lavishing luxurious gifts on Supreme Court Justice Clarence Thomas and Samuel Alito. The series of reports called ‘Friends of the Court’ prompted a national conversation and moved the nation's high court to adopt its first ethics code.” You can listen to Here and Now’s host Scott Tong interview one of the award-winning journalists, Joshua Kaplan, at this link.
According to the ProPublica announcement about the award, the Pulitzer Prize judges described the work as “groundbreaking and ambitious reporting that pierced the thick wall of secrecy surrounding the Supreme Court to reveal how a small group of politically influential billionaires wooed justices with lavish gifts and travel, pushing the Court to adopt its first code of conduct.” The prize is given to the staff of a news organization that performed “meritorious public service.” In addition to Kaplan, the other reporters receiving the award include Justin Elliott, Brett Murphy, Alex Mierjeski, and Kirsten Berg. Read more here.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Conflicts Counsel, Wilson Sonsini Goodrich & Rosati — Boston, District of Columbia, New York, Wilmington. Responsible for assisting with the review, identification and resolution of any potential conflicts issues with respect to clients, matters, as well as new hires. Learn more here.
US Conflicts and New Business Analyst, Withers Bergman LLP — New Haven, Greenwich, New York, Boston, San Diego, Los Angeles, San Francisco. Under the general direction of the US Head of Risk and Compliance and according to established policies and procedures, the US Conflicts and New Business Analyst will work as part of the Risk and Compliance team. Requires familiarity with the ABA Model Rules of Professional Conduct, particularly the conflict of interest rules. Learn more here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
May 19 — American Law Institute Annual Meeting, San Francisco. If you’ll be attending the ALI annual meeting, please be sure to stop by the Sunday special program featuring Judge Diane Wood, Hannah Johnson (Cal Western), and me discussing Shortlisted: Women in the Shadows of the Supreme Court. And then stick around for the ethics program “The Bot Stops Here: Issues and Ethics of Artificial Intelligence and Civil Liability,” with panelists Colleen Chien, Richard Boulware, Mark Geistfeld, Tom Lue, and Andy Song. More details 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.
September 1 — Deadline to Submit for Fred C. Zacharias Memorial Prize. Submissions and nominations of articles are being accepted for the fifteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2024. The prize will be awarded at the 2025 AALS Annual Meeting in San Francisco. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu. The deadline for submissions and nominations is September 1, 2024. To learn more about the history of this prestigious award and the past recipients, revisit LER Bonus Content No. 6.
Wisdom for the Week
“Where you see wrong or inequality or injustice, speak out, because this is your country. This is your democracy. Make it. Protect it. Pass it on.” — U.S. Supreme Court Justice Thurgood Marshall, Commencement Address at the University of Virginia, 1978
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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