LER No. 43 - Ghostwriting Briefs, Lawyer Threats Ethical?, Congress Launches Court Reform Now Task Force, Alito's Beer Stock Sale + Flag Flying Raise Ethics Concerns, Events, Jobs & More (05.20.24)
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
Thank you for being here. Welcome to what captivates, haunts, inspires, and surprises me every week in the world of legal ethics.
Each week the Legal Ethics Roundup is viewed by more than 1,500 readers across the United States and in 34 different countries. Subscribers include judges, lawyers, professors, state bar administrators, students, government officials, and people who care about the future of our democracy.
If you haven’t subscribed, take a moment now to sign up at the link below. It’s free! And you’ll never miss the latest edition. Please also consider becoming a paid subscriber, which helps to support this weekly newsletter and unlocks special bonus content, along with the ability to post comments.
Hello from San Francisco, where I’m attending the annual meeting of the American Law Institute this week.
Today is the four year anniversary of our book release for Shortlisted: Women in the Shadows of the Supreme Court, so it was fitting that my co-author Hannah Johnson (Cal Western Law) and Judge Diane Wood, who is now the ALI’s Executive Director, spoke about the book yesterday at the opening of the annual meeting.
If this sounds familiar, you’re right - the three of us reprised our talk from last summer at the Seventh Circuit Judicial Conference annual meeting - see LER No. 5 for more on that. Speaking about the book with this audience was extra special because so many had connections with the women profiled. For example, Steve Weise (Proskauer Rose) shared this recipe from Judge Mildred Lillie for chocolate mousse pie, topped with her signature handmade cherry cordials. Between Judge Susie Sharp and her, we could write a cookbook of recipes from the shortlisted sisters! Sharp’s archives are filled with recipes like this one, for “Lemon Jello Pound Cake,” which the judge “highly recommends” serving with lemon glaze, as noted below.
Learn more about all nine of the shortlisted sisters here. And happy birthday to Shortlisted!
The week was jam-packed with ethics news, for lawyers and judges. I weighed in both on lawyers ghostwriting Supreme Court briefs and Justice Samuel Alito’s upside-down flag flying. See Headlines #1 and #2 below for my thoughts in Bloomberg Law and CNN, respectively. And I have a bit more to say about the flag situation under “Accountability in our Democracy,” so please keep reading …
Highlights from Last Week - Top Ten Headlines
#1 The Ethics of Ghostwriting Briefs. From Bloomberg Law: “There are no rules against ghostwriting and Supreme Court advocates seem to agree there’s nothing specifically unethical about it. But Washington University in St. Louis law professor Daniel Epps, said the practice does raise some ethical concerns. ‘I don’t think there’s really any other way to explain the practice other than as an intentional attempt to mislead the court,’ he said. ‘That’s clearly why people are doing it.’ … The American Bar Association looked at the issue of ghostwriting in 2007, and said in an opinion that it’s not unethical for lawyers to ghostwrite briefs for litigants who represent themselves. That position ‘helps facilitate legal representation for pro se litigants who otherwise might not be able to pay for the help they need,’ Renee Knake Jefferson, a University of Houston Law Center professor and expert in legal ethics, said in an email. There is not, however, a specific rule in the ABA Model Rules of Professional Conduct, she said.” Read more here.
#2 The Ethics of Alito’s Upside-Down Flag + Beer Stock Sale. You get two headlines for #2. First, from CNN: “Justice Samuel Alito sought to head off mounting criticism Friday over a report that an inverted American flag was flown at his house in January 2021, telling Fox News that his wife hoisted the symbol of discontent in response to profane signs in the neighborhood. … A growing chorus of Democratic lawmakers and ethics experts lobbed criticism at the Supreme Court in response to the report and demanded that Alito recuse himself from cases involving the 2020 presidential election and January 6, 2021, attack on the US Capitol. … ‘Displaying a political symbol like this, with a clear message about the 2020 election given the timing, in the front yard of one’s home falls under this code provision, and Justice Alito should disqualify himself from cases related to the 2020 election challenges,’ said Renee Knake Jefferson, a law professor at the University of Houston Law Center. ‘But the code does not require him to do so,’ Jefferson added. ‘Ultimately, it is his decision alone to make.’” Read more here. Second, in an exclusive report, Chris Geidner at LawDork writes: “Justice Alito sold Bud Light stock amidst anti-trans boycott effort. Alito did not respond to questions about the sale, but its timing raises fair questions — particularly in light of other recent ethical questions.” Read more from Geidner (and sign up for his terrific Substack newsletter) here.
#3 Ethics Complaint about Justice Merchan’s Donation to ActBlue Dismissed with a Caution. From Reuters: “The New York State Commission on Judicial Conduct has dismissed an ethics complaint against Justice Juan Merchan, who is overseeing the hush money criminal case against former U.S. President Donald Trump, a spokesperson for the judge said. ‘Justice Merchan said the complaint, from more than a year ago, was dismissed in July with a caution,’ spokesperson Al Baker of the state Office of Court Administration said this week in response to a Reuters inquiry. The complaint stemmed from donations in 2020 which, according to the Federal Election Commission, were for $35 to the Democratic group ActBlue that included $15 earmarked for Biden for President and $10 each to Progressive Turnout Project and Stop Republicans. Reuters could not determine who made the complaint.” Read more here.
#4 Chief Justice Roberts Doesn’t Discuss Ethics. From Bloomberg Law: “US Supreme Court Justices Clarence Thomas and Brett Kavanaugh spoke about the challenges of the busy shadow docket. Sonia Sotomayor on the coming of artificial intelligence. And Samuel Alito the threats to fundamental freedoms. John Roberts talked about prairie dogs. The chief justice is one of five current and former justices who spoke publicly from May 10 to 14.” Read more here.
#5 GA Judicial Candidate Lawsuit Over Abortion Speech Rejected. From the Associated Press. “A federal judge on Thursday rejected a lawsuit by a former Democratic congressman running for Georgia state Supreme Court who claimed a state agency was unconstitutionally trying to block him from talking about abortion. U.S. District Judge Michael Brown ruled John Barrow didn’t have standing to sue because Barrow himself chose to release a confidential letter from the Georgia Judicial Qualifications Commission and because his continued public statements show his speech isn’t being restricted.” Read more here.
#6 Potential Sanctions for Smear Campaign Against Flint Water Lawyer. From Law360: “The Michigan federal judge overseeing Flint, Michigan, water crisis cases excoriated a water engineering firm and its PR agency for apparently running a smear campaign targeting a lawyer for Flint children, saying Monday she will sanction the firm if it doesn't turn over documents about the campaign by next week.” Read more here.
#7 CUNY Law Students Sue Over Commencement Censorship. From the New York Post (H/T TaxProf Blog): “Eight CUNY Law School students are suing the embattled institution claiming it violated federal censorship rules by nixing student-selected speakers, who have recently been anti-Israel, at commencement.” Read more here.
#8 Judge Cannot Work as Real Estate Agent. From the Maryland Daily Record: “A district court commissioner cannot also work as a real estate agent, the Maryland Judicial Ethics Committee ruled last week. In a published opinion, the state’s judicial ethics panel determined that a district court commissioner may not work as a real estate agent as their secondary employment, citing concerns regarding ‘the appearance of impropriety.’” Read more here.
#9 ABA Allows Alternatives to Bar for Licensure; CA Pauses Plan to Replace the NCBE with Kaplan for Bar. Two headlines for #9! First, from Reuters: “The American Bar Association on Friday endorsed alternative attorney licensing pathways that don’t involve the bar exam, marking a major shift in ABA's stance on admission to practice law. The adoption of a new policy statement by the ABA's Council of the Section of Legal Education urges states to ‘create diverse pathways to licensure.’ For 103 years, the ABA has backed the use of bar exams for lawyer licensing.” Read more here. Second, from the ABA Journal: “Driven by money problems, the State Bar of California had planned to decide this week if it would shift test-writing duties from the National Conference of Bar Examiners to Kaplan Test Prep for a Multistate Bar Exam replacement starting in February 2025. However, on the morning of May 16, the State Bar of California board of trustees pulled the proposal from that day’s agenda. No further details on when the discussion would be picked up are yet available.” Read more here.
#10 Arizona Update — Giuliani Indictment Served as 80th Birthday Gift; Eastman Pleads Not Guilty. And two headlines for #10 as well! First, from People Magazine: “Rudy Giuliani has been served with indictment papers for his alleged involvement in the so-called scheme to steal votes in the 2020 presidential election. On Friday, May 17, Arizona Attorney General Kris Mayes announced via X (formerly Twitter) that the former New York City mayor has been served, noting that he was the final defendant in the case to have been handed the indictment documents that charge him with conspiracy, fraud and forgery. ‘Nobody is above the law,’ Mayes wrote.” Read more here. Second, from the Washington Post: “John Eastman, an alleged architect of an attempt to deliver Arizona’s 11 presidential electoral votes to Donald Trump after his 2020 loss, pleaded not guilty Friday to conspiracy, fraud and other criminal charges brought by Arizona Attorney General Kris Mayes (D).” Read more here.
Ethics Reform Watch — Members of Congress Launch “Court Reform Now Task Force”
From Courthouse News Service: “A group of House Democrats announced the creation of a new task force Wednesday which they say will work to advance legislation addressing what they have argued is political activism and ethical malfeasance on the Supreme Court. ‘The Supreme Court has upset the delicate system of checks and balances on which our democracy once rested,’ said Georgia Representative Hank Johnson, head of the Court Reform Now task force, during a news conference. … He thumped several progressive policies, such as a bill that would add four seats to the Supreme Court’s existing nine and separate legislation that would establish 18-year term limits for justices. The Georgia Democrat also said his new task force would back the Supreme Court Ethics and Recusal, or SCERT, Act, penned by Rhode Island Senator Sheldon Whitehouse. If made law, the legislation would force the high court to develop a code of ethics with input from the public and would stand up an independent review board to consider ethics complaints against the justices. The Senate Judiciary Committee advanced the measure to the full chamber last summer amid a partisan slugfest. The bill has been on the upper chamber’s legislative calendar since September — but Senate Majority Leader Chuck Schumer has yet to bring the SCERT Act up for a vote.” Read more here.
Recommended Reading — Recent Scholarship
“When Can a Lawyer Use Threats When Negotiating?” by James Fischer (Southwestern Law). From the abstract:
This article focuses upon a basic negotiation device -- a threat, used in a particular context - - threats contained in settlement demand letters. In some, but not all, cases, however, the threat may be deemed a crime (extortion), in which case, the lawyer may be subject to sanction (criminal or civil liability, professional discipline) for making the threat. This consequence has, however, been largely ignored in academic literature. That is unfortunate for it appears that many lawyers are unaware of the risks negotiation threats present because the risk is not well defined in the professional codes lawyers would normally look to for guidance.
This article explores the fine, perhaps almost imperceptible, line that separates a permissible from an impermissible threat. The article does this by examining a number of California judicial decisions on this point. California was chosen because the California Supreme Court’s decision in 2006 in Flatley v. Mauro appears to have sparked interest in seeking civil recourse against lawyers who make negotiation threats. This article also discusses the application of First Amendment principles to “threats,” The article concludes with some recommendations on how lawyers can reduce the risks that any threats they use during negotiations will subject them to civil liability or professional discipline.
“‘Normal’” by David Katner (Tulane Law). From the abstract:
Forty-two years ago, the ABA drafted Model Rule of Professional Conduct 1.14 dealing with attorneys who represent clients with "diminished capacity." The legal ethics code requires lawyers to maintain a "normal" client-lawyer relationship, however, there are many issues that complicate such relationships. This piece suggests that redrafting the rule using an interdisciplinary team that includes lawyers. forensic psychologists and psychiatrists along with social worker therapists might significantly improve the language of the rule. In addition, updating this rule using an interdisciplinary approach could create a greater degree of accountability for lawyers charged with the responsibility of representing clients coping with mental health challenges and other disabilities.
This Week in Ethics History
May 23, 1901. President William McKinley visited Union Square in San Francisco to break ground on the Dewey Monument. Six months later he was assassinated and Theodore Roosevelt became president. McKinley was a lawyer, and while his visit to San Francisco isn’t exactly ethics history, since I’m at a hotel in Union Square this week I’m sharing what I’ve learned about the history that happened at my doorstep, and you can read some ethics advice from McKinley under “Wisdom for the Week” below.
May 23, 2013. The ABA issued Formal Opinion 463 “Client Due Diligence, Money Laundering, and Terrorist Financing.” Here’s the summary:
The Model Rules of Professional Conduct and the ABA Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing (“Good Practices Guidance”) are consistent in their ethical principles, including loyalty and confidentiality. The Good Practices Guidance provides information to help lawyers recognize and evaluate situations where providing legal services may assist in money laundering and terrorist financing. By implementing the risk-based control measures detailed in the Good Practices Guidance where appropriate, lawyers can avoid aiding illegal activities in a manner consistent with the Model Rules.
Legal Ethics Trivia
From the Texas Center for Legal Ethics, here’s the question of the month: “How creative can you get when settling a legal malpractice claim?” Test yourself at this website where you can read a short hypothetical, select an answer, and see your results.
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, this section featured nonprofit organizations working to improve lawyer and judicial ethics. For an easy-to-access overview, see Roundup No. 31. Over the past couple of weeks we explored the role of journalists in holding lawyers and judges accountable (see Roundups No. 41 and No. 42).
This week I want to return to the lack of accountability for the Supreme Court, a topic that has appeared regularly in the Roundup headlines but went next level this past week with the news that Justice Alito’s home displayed an upside-down flag during January 2021. Blaming his wife and his neighbors didn’t help.
The Supreme Court adopted an ethics code – the only court without one – late last year. It contains a provision stating that a justice should disqualify himself from a case where his impartiality might reasonably be questioned, for example where the justice has a personal bias or prejudice concerning a party. Displaying a political symbol like this, with a clear message about the 2020 election given the timing, in the front yard of one’s home would fall under this code provision and Justice Alito should disqualify himself from cases related to the 2020 election challenges.
When I first learned about the flag, I assumed it was a deep fake image or some sort of prank gone wrong. As I told Salon reporter Marina Villeneuve, it’s concerning that Justice Alito had no explanation like this, but instead placed blame on his wife and apparently still allowed the flag to remain for a period of days. I would expect a judge or justice who is dedicated to ensuring the court is neither political, nor perceived to be so, would state unequivocally that he denounces that the flag was flown in this way and will take steps to prevent a recurrence. Not saying so under these circumstances reinforces critiques that the court is as much a political institution as the other branches of government, which if accepted means a core institution of democracy is compromised. (Lots of other legal ethicists weighed in too for Villeneuve’s Salon article, including Charles Geyh (Indiana), Leslie Levin (Connecticut), Jim Moliterno (W&L), Richard Painter (Minnesota), and Richard Zitrin (UC Law SF).)
This is why an enforceable code of ethics is so important for the Supreme Court – both to ensure fairness to individual litigants in a case and to preserve the public’s confidence in the institution. The current Supreme Court ethics code, critically, lacks any tools for meaningful enforcement or accountability.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Assistant General Counsel for Ethics Law and Program, Department of Commerce — Washington D.C. The Assistant General Counsel for Ethics Law and Program is accountable to the Secretary and the Designated Agency Ethics Official for the administration of Commerce's government ethics program, encompassing all Department bureaus and offices. Learn more here.
Conflicts Attorney, Proskauer Rose — Los Angeles. The Conflicts Attorney assists with the identification, review, analysis, and reconciliation of all conflicts of interest related to incoming legal personnel Firm-wide. The role likewise advises on the identification and reconciliation of potential and actual conflicts of interest related to new client and matter opening across Firm offices and jurisdictions. Learn more here.
New SEALS Faculty Recruitment Platforms. Not exactly related to legal ethics, but sharing to help raise awareness of this new set of free services for the law teaching community offered by the Southeastern Association of Law Schools. There are three sites worth noting:
The Faculty Hiring Portal allows faculty candidates to indicate their interest in finding an academic job and permits faculty hiring committees to search for candidates who meet the school’s hiring needs.
The Visiting Faculty Portal allows current law school faculty to indicate their interest in visiting opportunities on a look-see, podium, or overload basis.
The Job Postings site is a bulletin for schools to advertise their various hiring interests and position details.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all 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 Samuel Levine (Touro Law) 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
“Our differences are policies; our agreements, principles.” — President William McKinley
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
Did a brilliant colleague forward this to you? If so, subscribe now to get the next Legal Ethics Roundup delivered directly to your in-box.