LER No. 45 - SCOTUS Ethics Letters, Ineffective Assistance of Counsel, Remembering Judges Allen and Batts During Pride Month, "Representing Elon Musk," Pop Culture, Jobs, Events & More (06.03.24)

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

Jun 03, 2024

Welcome

Thank you for being here. Welcome to what captivates, haunts, inspires, and surprises me every week in the world of legal ethics.

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Hello from Denver, where I spoke at the American Bar Association Center for Professional Responsibility National Conference on Thursday. I was invited by Lucian Pera (Adams and Reese) to talk about “hot topics” in legal ethics along with Matthew Corbin (Aon) and Hope Todd (DC Bar), sort of a Legal Ethics Roundup but live and with 30 headlines instead of 10! (Send me an email if you’d like a copy of our presentation slides, which include links for more information about the whirlwind of topics we covered.) If you’ve not attended this conference, it is the ABA’s signature annual educational and networking event for lawyers who represent, prosecute, advise, and educate other lawyers on issues of ethics, discipline, professionalism, and more. It’s been at least a decade since I last attended, and it was wonderful to catch up with old friends and meet new ones. The highlight for me was the Scholars Roundtable, an informal gathering for folks with works-in-progress to discuss their scholarship and receive feedback. Another highlight was the presentation of the Michael Franck Professional Responsibility Award to Susan Fortney (Texas A&M), which you can read more about in Bonus Content No. 13.

The view from the Grand Hyatt Denver’s walking track (photo by Renee Jefferson)

The ABA Journal published a lengthy article Saturday by Anna Stolley Persky about the lack of consistency and transparency in judicial oversight. It includes several quotes from her interview with me, along with two of my soon-to-be co-authors Charlie Geyh (Indiana) and Keith Swisher (Arizona). (I will be joining their treatise Judicial Conduct and Ethics for future updates and editions.) You’ll find a link to the article at Headline #3, below.

Saturday also marked the start of Pride Month. President Bill Clinton was the first to recognize the month of June in this way, issuing a presidential proclamation in 1999. More on that below under “Ethics History.”

Courtesy of the Clinton Presidential Center, 2023

Highlights from Last Week - Top Ten Headlines

#1 The Recusal Letters. Justice Samuel Alito wrote two letters refusing to recuse himself in cases related to January 6 and the 2020 election based upon concerns about his impartiality after flags associated with political messages were flown at his homes. In response, members of the House Judiciary Committee wrote Chief Justice John Roberts to demand action. I read the letters, and the commentary that ensued, so that you don’t have to and posted about it in LER Bonus Content No. 12, if you missed it. Voice of America reporter Rob Garver included parts of my commentary in his reporting - see here. As I predicted, the battle of letters continued with a reply from Chief Justice John Roberts - see Headline #2.

#2 Chief Justice Roberts Refuses to Meet With Congress Members Over Ethics Concerns. From NPR: “Chief Justice John Roberts has declined an invitation to meet with top Senate Democrats over judicial ethics, citing ‘separation of powers concerns.’ His letter to Sens. Dick Durbin and Sheldon Whitehouse, the chair and senior Democrat on the Senate Judiciary Committee, comes a day after Justice Samuel Alito declined to recuse himself from two Jan. 6-related cases despite calls to do so after news reports said politically controversial flags were flown outside Alito’s properties. Following the revelations about Alito, Durbin and Whitehouse invited Roberts to meet with them. ‘I must respectfully decline your request for a meeting,’ Roberts wrote.” Read more here.

#3 “Judging the Judges — State Judicial Oversight Often Lacks Consistency and Transparency.” From the ABA Journal: “Renee Knake Jefferson, a law professor and the Joanne and Larry Doherty Chair in Legal Ethics at the University of Houston Law Center, says increased uniformity among the states when it comes to oversight of judges would help public perception of the judicial system. ‘If you have judges that are engaging in the same type of behavior, and it's being reported in the media, but the behavior warrants sanctions in one jurisdiction and doesn't in another, the public can take notice and get cynical,’ Jefferson says. … While Jefferson understands the need for confidentiality to get cooperation from parties, she emphasizes the importance of transparency to educate the public and other judges on what behavior is considered appropriate and what isn't.” Read more here.

#4 No Ineffective Assistance of Counsel Despite Lawyer’s Failure to Present Mitigating Evidence. From MSNBC: “Justice Ketanji Brown Jackson has staked out her own positions so far during her relatively short Supreme Court tenure. She continued in that mode Thursday, dissenting alone from a death penalty ruling by the Republican-appointed majority. Jackson’s criticism, which was stronger than her two fellow Democratic appointees’ separate dissent, provides some insight into the court, including within its three-justice minority, in a case that might otherwise escape widespread notice. The decision in Thornell v. Jones, authored by Justice Samuel Alito, reversed a federal appeals court that sided with a criminal defendant on ineffective assistance of counsel grounds. … The 9th Circuit had ordered Danny Lee Jones’ resentencing on the grounds that his Sixth Amendment right was violated because his counsel failed to raise certain favorable evidence to try to mitigate his death sentence.” Read more here.

#5 South Carolina Supreme Court Will No Longer Be All-Male. It Will Also Be All-White for First Time in 17 Years. From The Post and Courier: “South Carolina’s Supreme Court will no longer be the nation’s only all-male high court. Court of Appeals Judge Letitia Verdin is now all but assured to become the next justice of the state Supreme Court after her lone remaining opponent, Conway-area Judge Blake Alexander Hewitt, dropped out May 30. The formal election will be June 5 when lawmakers convene at the Statehouse, two sources confirmed to The Post and Courier.” Read more here. Also from The Post and Courier: “The only Black candidate in the race for an open South Carolina Supreme Court seat dropped out May 28, ensuring the state's high court will become all White for the first time in 17 years.” Read more here.

#6 Stronger Harassment and Bias Ethics Rules in Illinois. From Law360: “The Illinois Supreme Court has announced that the state's professional conduct rules for attorneys have been amended to deem the act of engaging in harassment or discrimination as professional misconduct.” Read more here.

#7 DC Recommends Disbarment for Giuliani. From CNN: “Donald Trump’s former lawyer Rudy Giuliani is one step closer to being disbarred. The professional responsibility board in Washington, DC, recommended Friday that the ex-New York mayor and federal prosecutor lose his law license because of his involvement in a bogus 2020 election fraud lawsuit. Giuliani’s law license had already been suspended due to his work boosting Trump’s false assertions about his electoral loss. It is up to the DC Court of Appeals to decide whether to permanently disbar Giuliani.” Read more here.

#8 NC Considers Bill to Expunge Attorney Discipline Records. From Law360: “The North Carolina House of Representatives on Tuesday voted in favor of a bill that would allow attorneys to clear certain disciplinary records, putting the proposal one step closer to becoming law.” Read more here.

#9 Judging Abortion. From the Arizona Republic: “Arizona Supreme Court Justice Clint Bolick forcefully decries the effort urging voters to remove him and a colleague from the bench since upholding the state’s 1864 abortion law, arguing his critics are ‘hijacking the retention process.’ In a 1,500-word opinion piece in The Arizona Republic published Monday, Bolick insults his critics, defends the abortion ruling and the state’s judges, and warns against a politically driven retention system that would be ‘game-over for the rule of law.’ Those seeking to oust him and Justice Kathryn H. King have turned to the slogan ‘Vote Them Out!’ which, he said, ‘packs with venom what it lacks in substance.’The liberal activist group Progress Arizona is advocating their removal, saying that when the court puts ‘ideology over the people’ it is a ‘civic duty’ to change justices.” Read more here.

#10 Nancy Moore Receives New York State Bar Association Sanford Levy Award. From the NY State Bar Association website: “Boston University School of Law Professor Nancy Moore will be honored with the Sanford D. Levy Professional Ethics Award from the New York State Bar Association’s Committee on Professional Ethics for her lifetime of work. … The award is named for Sanford D. Levy, a former member of the New York State Bar Association Committee on Professional Ethics. It has been presented since 1982 to an individual or institution that, in the opinion of the committee, has contributed most to the understanding and advancement in the field of professional ethics. Moore, a Nancy Barton scholar at Boston University where she has taught since 1999, is a nationally recognized leader in professional responsibility.” Read more here.

This Month in Ethics History

June 23, 1994. The first openly gay federal judge — the Honorable Deborah A. Batts — was sworn in. From the New York Times: “Deborah A. Batts, the first openly gay judge to sit on the federal bench, who presided over prominent cases involving political corruption, terrorism and the Central Park Five civil case, died on Monday at her home in Manhattan. She was 72. Her wife, Dr. Gwen Zornberg, said she died unexpectedly of complications after knee replacement surgery. Judge Batts served for a quarter-century on the United States District Court for the Southern District of New York. After her nomination in 1994 by President Bill Clinton, it took 17 years before a second openly gay judge, J. Paul Oetken, was appointed to the federal bench. She was also the first African-American faculty member at Fordham Law School, where she continued to teach even after she became a judge.” Read more here. And read “Wisdom for the Week” below for some advice about how she found success.

The Honorable Deborah A. Batts (Source: Wiki Commons public domain)

Judge Batts was not, however, the first gay woman to serve on the federal bench. Florence Allen was the first, appointed by President Franklin Roosevelt in 1934 to the U.S. Court of Appeals for the Sixth Circuit. For more about her, revisit Roundup No. 34. She was also the first woman to appear on a presidential shortlist for the U.S. Supreme Court. When Allen died, President Lyndon Johnson sent this letter to her longtime companion, Mary Pierce. (I stumbled upon this gem while doing research in the LBJ presidential archives.)

Here’s a photo of Allen and Pierce from their 1948 holiday card.

“1948, Florence Allen and Mary Pierce Holiday Greetings Card.” 2016, https://oaks.kent.edu/node/346

Allen’s story is featured in my book Shortlisted: Women in the Shadows of the Supreme Court and Tracy Thomas’s (Akron) much-anticipated biography, First Woman Judge: Florence Allen, Feminism & the Transformation of US Courts will be published by the University of California Press in 2025. (I hope someone is writing a biography about Judge Batts too - readers, let me know if so!)

Legal Ethics in Popular Culture

While these are not all directly related to legal ethics, most touch on issues we cover here, which is why I’m sharing the winners of the 2024 ABA Silver Gavel Award. Per the ABA announcement: “The awards acknowledge outstanding work that fosters the American public’s understanding of law and the legal system. They are the ABA’s highest honor in recognition of this purpose.” Here are the Silver Gavel recipients:

“Shielded: How The Police Became Untouchable,” a book in which author Joanna Schwartz details how laws have made it impossible to hold police accountable for misconduct.
“Alabama’s Desperate Bid for a Milligan Do-over,” commentary about how Black voters in Alabama were wronged and new congressional districts had to be redrawn.
“No Accident,” a documentary about the aftermath of the deadly “Unite the Right” rally in Charlottsville, Virginia, and the challenges of holding leaders liable.
“Killers of the Flower Moon,” a film directed by Martin Scorsese, tells the story of the Osage Nation in the 1920s in Oklahoma. After oil is discovered on the land, the people are met with racial injustice, greed and serial murder.
“What Makes a Murderer,” a magazine article devoted to unraveling a “draconian” legal doctrine known as felony murder, which has disproportionately imprisoned young Black people.
“Your Democracy,” a multimedia production on YouTube that explores the judicial branch of government and how a case makes it to the United States Supreme Court.
“In the Name of Protection: The Dark Side of Guardianship,” an investigative story by Bloomberg Law that delves into the adult guardianship industry and how its lack of regulation opens up the potential for exploitation of the elderly and disabled.
“The Nocturnists: Post-Roe America Podcast,” a seven-episode series that features the stories of abortion providers.
“Warehoused: The Life and Death of Tristin Murphy,” a television documentary that reviews the treatment of the mentally ill in Florida’s criminal justice system.

Get Hired

Did you miss the 100+ job postings from previous weeks? Find them all here.

Conflicts Attorney, Husch Blackwell — Remote. This position is responsible for assuring compliance with applicable Rules of Professional Conduct, assisting with and managing other ethical risk mitigation issues, and assuming responsibility for identifying and resolving legal and commercial conflicts issues. The Conflicts Attorney understands the rules that govern legal practice and assists others with the understanding of and compliance with those rules. The Conflicts Attorney does not practice law for any client other than the Firm and maintains professionalism and strict confidentiality in all client and Firm matters. Learn more and apply here.
Senior Conflicts Attorney, Husch Blackwell — Remote. The Senior Conflicts Attorney directs and conducts specific processes in the Conflicts department, including timely and thorough review, identification and resolution of conflicts of interest, preparation of conflicts waivers, recommendations regarding ethical wall implementation, and other ethics related responsibilities. Further responsibilities will include proactive and clear communication with partners, staff, and firm leadership regarding conflicts requests and complex conflicts questions; maintaining thorough and accurate records of conflicts resolutions; and assistance with identifying and resolving erroneous, outdated, or incomplete conflicts information in existing records in order to maintain the integrity of information. Learn more and apply here.

Upcoming Ethics Events & Other Announcements

Did you miss an announcement from previous weeks? Find them all here.

July 17-19 — International Legal Ethics Conference, University of Amsterdam. Registration now open. More details here.

July 26, 2024 — Southeastern Association of Law Schools Annual Meeting. If you’re attending the SEALS annual meeting, stop by the panel on Teaching Professional Responsibility in Divisive (and Strange) Times from 1:00 - 2:45 pm. Participants include Ben Barton (Tennessee); Thomas Metzloff (Duke); Kate Kruse (Mitchell Hamline); Alex Long (Tennessee); Ben Cooper (Mississippi); John Cook (Arkansas); Jon Lee (Oklahoma); Margaret Tarkington (IU); Brad Wendel (Cornell); and Paula Schaefer (Tennessee). Details and registration here.
August 1-3 — Association of Professional Responsibility Lawyers Annual Meeting, Chicago. Details and registration 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

“Never shy away because you think [others are] not going to let you do it. Give them the opportunity to let you do it by being there and showing that’s what you want to do.” — U.S. District Judge Deborah A. Batts

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