LER No. 47 - $180M in Legal Malpractice Revived, Secret SCOTUS Recordings, 5th Circuit Tanks AI Ethics, Congress Fails Again on SCOTUS Ethics Reforms, History, Jobs, Events & More (06.17.24)
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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Exactly one year ago I began thinking about creating this newsletter. As we approach the Legal Ethics Roundup’s first birthday in August, I’ve been reflecting on the larger themes that continually surface. Some, like Supreme Court ethics, motivated me to start sharing headlines with you every week. Others, like repeated romantic conflicts among lawyers and judges, surprised me (though I suppose I shouldn’t have been). In a Roundup next month, I will remind you about these themes, linking back to past editions and connecting them with the latest headlines. Last Tuesday, I spoke with Major Garrett on CBS 24/7 about one of the biggest themes — Supreme Court ethics. You can watch our conversation here.
One of my summer writing projects is a law review article about journalists as enforcemers of lawyer and judicial ethics. A few weeks ago I focused the “Accountability in our Democracy” section on the role ProPublica played in pressing the Supreme Court to adopt an ethics code, for which journalists earned a Pulitzer Prize. (See LER No. 42.) Last week we witnessed a very different sort of reporting from Lauren Windsor, who is a self-described “advocacy journalist.” She secretly recorded Justice Samuel Alito and his wife at the annual Supreme Court Historical Society gala and her release of their conversations got a lot of attention. I have so many thoughts about this, and I’m still processing them.
I understand that Windsor believes she did this “in service of a public good,” as she explained to NPR’s Steve Inskeep. But, I worry that secret recordings like these will distract from the real work of meaningful reforms. These recordings didn’t reveal anything new about the Alitos. As Peggy Noonan wrote in the Wall Street Journal: “A left-wing activist impressed her comrades, hardened her foes, and got attention. So what?” While I agree with Joan Biskupic’s observations at CNN that the revelation of Alito’s remarks shows “why people are skeptical of the Supreme Court,” I don’t know whether this will galvanize the Court or Congress to fix the situation.
To be sure, individual justices will hold a wide range of beliefs about politics, religion, and more. And that’s ok. What matters are the structures put into place to assure litigants and the public that judges decide cases on their merits, not based on outside influences or personal agendas. Given the Supreme Court’s lack of self-enforcement for ethics, and Congress’s inability to come together in a bipartisan way to enact reforms, we must rely upon journalists to push for this accountability. But, what are the limits? And how much longer must the public wait? (See “This Week in Ethics History,” below, for some context.) I have lots more to say on this, but for now, let’s turn to the headlines.
Highlights from Last Week - Top Ten Headlines
#1 Public Faith in Supreme Court Drops to Lowest Level Ever Over Lack of Ethics. From the USA Today: “The US Supreme Court has had its ethical compass called into question periodically over the decades, but not nearly as much as it is right now. From Justice Clarence Thomas's recent disclosure of receiving millions of dollars in vacation benefits to Justice Samuel Alito's admission of flying an American flag upside down at one of his homes, a politically charged symbol, the court's integrity is under scrutiny and public faith in the court has dropped to its lowest level ever recorded. Can the public's trust in this institution of American democracy be restored?” Read more here.
#2 Even After Correcting Financial Disclosures from 2019, the Latest Disclosure from Thomas Still Contains Errors. From the Washington Post: “Supreme Court Justice Clarence Thomas took three previously unreported trips paid for by conservative Texas billionaire Harlan Crow, according to new documents released Thursday by the Senate Judiciary Committee. Details of the private jet flights between 2017 and 2021 were obtained as part of an investigation the committee has been conducting into reports of lavish undisclosed travel and perks provided to justices by Crow and other wealthy benefactors that have sparked calls for reform. Crow released the information after the committee issued subpoenas in November for him and conservative activist Leonard Leo to provide information to the body.” Read more here (gift link).
#3 “5 reasons Supreme Court ethics questions are more common now than in the past.” From Charlie Geyh (Indiana) is this op-ed in The Conversation: “In recent years, all nine sitting justices on the U.S. Supreme Court have been the subject of reports calling their ethics into question. Is this an old problem? Something new? Political gamesmanship? Something more serious? As a legal scholar who has studied judicial history, politics and ethics, my answer to each of these questions is ‘yes.’” Read more here.
#4 Congress Fails Again to Pass Supreme Court Ethics Reforms. From the New York Times: “Senate Republicans on Wednesday blocked an effort by Democrats to quickly pass Supreme Court ethics and transparency legislation they had pushed forward in the wake of disclosures about justices taking unreported gifts and travel and other ethical issues surrounding the high court. The unsuccessful outcome was predetermined, but represented an effort by Senate Democrats to show they were pressing the case against the court. It was also aimed at demonstrating the limits of their power given the narrow divide in the Senate and deep Republican opposition to Congress taking action to impose stricter ethics rules on the justices.” Read more here (gift link).
#5 More than Sixty Organizations Seek Supreme Court Ethics Reform. From Courthouse News: “A coalition of policy organizations and judicial advocacy groups on Monday ratcheted up pressure on Senate Democrats to investigate Supreme Court Justice Samuel Alito and hold the high court accountable for what they described as a pattern of ethical malfeasance. ‘The justices on our nation’s highest court must hold themselves to the highest ethical standards, yet we have witnessed time and time again that certain justices have repeatedly failed to meet that foundational duty,’ wrote the Leadership Conference on Civil and Human Rights in a letter to senators, signed by more than 60 other organizations.” Read more here.
#6 More Indicted Lawyers in Wisconsin, One Suspended from State Judicial Ethics Committee. From the Associated Press: “The Wisconsin Supreme Court on Tuesday suspended former President Donald Trump’s Wisconsin lawyer from a state judicial ethics panel a week after he was charged with a felony for his role in a 2020 fake electors scheme. Liberal advocates have been calling for Jim Troupis to step down from the Judicial Conduct Advisory Committee, saying he is unsuitable due to his role advising the Republicans who attempted to cast Wisconsin’s electoral votes for Trump after he lost the 2020 election in the state to Democrat Joe Biden. Troupis, a former judge, Kenneth Chesebro, another Trump attorney, and former Trump aide Mike Roman were all charged by state Attorney General Josh Kaul last week for their role in the fake electors plot.” Read more here.
#7 Fifth Circuit Won’t Adopt Generative AI Ethics Rules After All. From Reuters: “A federal appeals court in New Orleans on Monday said it decided not to adopt what would have been a first-of-its-kind rule at the appellate level regulating the use of generative artificial intelligence by lawyers appearing before it. The 5th U.S. Circuit Court of Appeals said it had decided not to adopt a rule it first proposed in November after taking into consideration the use of AI in the legal practice and public comment from lawyers, which had been largely negative.” Read more here.
#8 Judge Holds (Bullies?) Lawyer in Contempt After a Challenge Over Ex Parte Communications. From the Atlanta Journal-Constitution: “Many Atlanta attorneys think the judge presiding over Young Thug’s racketeering trial let his emotions get the better of him Monday when he held a prominent defense lawyer in contempt and sentenced him to 10 weekends in jail. The clash between Judge Ural Glanville and defense lawyer Brian Steel began with questions about a secret meeting. It could upend the entire trial, which has already lasted 18 months - making it the longest trial in Georgia’s history. ‘It is unconscionable, to put it mildly, what the judge has done,’ said veteran criminal defense attorney Don Samuel, who represented musician Gunna in the case but is not involved in the trial. ‘He became a bully and started demanding answers from a defense lawyer who was ethically obligated to challenge the procedures being used.’” Read more here.
#9 $180M Legal Malpractice Lawsuit “Revived.” From Reuters: “A federal appeals court on Monday revived a $180 million legal malpractice lawsuit against law firm DLA Piper after finding that the lawsuit should have been heard in New York state court, not federal court. The U.S. Court of Appeals for the 2nd Circuit vacated a federal judge's May 2023 ruling that dismissed the allegations by Chinese software company Link Motion for being filed too late. The 2nd Circuit's ruling did not address whether Link Motion's lawsuit was time-barred, leaving that for a state judge to decide.” Read more here.
#10 DA Willis Asks for Dismissal of Disqualification Appeal While Wade Keeps Speaking Publicly About the Relationship. From the Washington Post: “Fulton County prosecutors asked a Georgia appellate court to dismiss Donald Trump’s appeal of a state court ruling allowing District Attorney Fani T. Willis (D) to continue prosecuting the 2020 election interference case against the former president and several of his allies.” Read more here. Meanwhile, Nathan Wade is still talking about the relationship, this week sitting down with CNN’s Kaitlan Collins for a detailed interview. Here’s the clip where his team pauses the interview to give him some advice. (My advice? Stop giving interviews.)
This Week in Ethics History
June 17, 1972. The Watergate was broken into. We all know what happened next, including the indictment of lawyers, and a Pulitzer awarded to the journalists whose reporting helped hold them accountable. Check out this April 2024 Vanity Fair article by James Robenalt, who writes: “In 2010, I began working with John Dean, President Richard Nixon’s former White House counsel, to create an ethics program for lawyers across the nation who are required to periodically take ethics training in order to maintain their licenses. We have given more than 300 workshops, probably to more than 85,000 lawyers, judges, and professors. We use Dean’s experience as counsel to the president to teach about broader issues that the profession faced following Nixon’s 1974 resignation as a result of the Watergate scandal.”
June 18, 2011. The New York Times reported on the ethics of Harlan Crow’s relationship with Justice Clarence Thomas. From the NYT: “The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas. In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.” Read more here (gift link).
June 19, 1865. Texas residents learned about the Emancipation Proclamation, issued two years earlier in 1863, when Union soldiers arrived in Galveston. The date was officially recognized as a federal holiday by President Joe Biden in 2021, known as Juneteenth to commemorate the end of slavery in the United States. Law firms throughout the country now recognize it as well - see this ABA Journal article for more.
June 22, 2016. The New York Times reported on the financial disclosures for Supreme Court justices in 2015. From the NYT: “Justice Stephen G. Breyer was the most active traveler last year, taking 19 paid trips, including three to London and two to Paris. The trips were partly to promote his book ‘The Court and the World,’ which was published last year. He reported royalties and other payments from his publisher of about $120,000.” Read more here (gift link).
Recommended Reading — New Scholarship
“Demonstrating Civility: A Law School Learning Outcome,” by Laurel Rigertas (Northern Illinois). From the abstract:
There have been calls over the years for law schools to teach their students civility. At least twenty-seven law schools have answered that call and adopted “civility” as a learning outcome. Their learning outcomes have two general approaches—having students understand civility or having students demonstrate or exhibit civility. This article takes the position that the skill of demonstrating civility is the better learning outcome. Civility helps the legal system function and future lawyers will have a key role in continuing to improve that system. However, this learning outcome comes with challenges given the lack of a precise definition of civility combined with different reasons—both emotional and strategic—that may cause incivility. This article gives law schools tools to teach their students how to demonstrate civility including a working definition of civility, an overview of psychological research regarding the causes of incivility that can inform law school pedagogy, and strategies for incorporating and assessing law students’ demonstration of civility throughout the law school curriculum. By drawing upon scholarship from the fields of psychology and professional identity formation, the goal of this article is to give more law schools confidence to adopt demonstrating civility as a learning outcome, despite its challenges. The times call for such a commitment.
“The New Legal Ethics” by Brad Wendel (Cornell). From the abstract:
In stark contrast to the traditional neutral partisanship or zealous advocacy model of legal ethics, a new approach has emerged in recent years, particularly among law students, recent graduates, and lawyers who identify as politically progressive. The new legal ethics, as I refer to it, has a number of characteristics, including (1) a very strong conception of complicity for involvement in the wrongdoing of others, even if the causal contribution it makes to the wrong is insubstantial; (2) profound mistrust of institutions, systems, procedures, and chains of command; and (3) comfort with the exercise of significant discretionary power by lawyers to make moral decisions. While not entirely new – in fact, Duncan Kennedy urged law school graduates in 1986 not to represent clients who are “trying to do something terrible, and wants to use your lawyer skills to do harm” – the new legal ethics appears to be regarded by younger lawyers as the mainstream position, not a radical critique.
This paper is the published version of the 2024 Howard Lichtenstein Distinguished Professorship in Legal Ethics Lecture at Hofstra Law School. It considers the normative core of the new legal ethics, which is the strong conception of complicity. The analysis proceeds via consideration of Christopher Kutz’s Complicity Principle, which separates the evaluation of complicity from the causal contribution of an action to the harm, to the description of actions in terms of the actor’s intentions. The assessment of moral blameworthiness based on the actor’s intentions is complicated by the multiple descriptions that can be offered of the act of representing a controversial client seeking to commit allegedly wrongful acts. To make this analysis more concrete, the paper considers two case studies: One is a lawyer who violated the rules of professional conduct in order to avoid what she regarded as complicity in the client’s wrongdoing. The second is persistent public criticism of a lawyer whose actions, while consistent with the rules, are deemed by progressive critics to amount to complicity in wrongdoing.
I end up with a position inspired by Alasdair MacIntyre and Bernard Williams: A lawyer should aim at a unified life narrative that takes into account both the personal and professional dimensions of actions and intentions. In some cases a coherent narrative will include a sense of reluctance or regret arising from the moral costs of professional permissible actions. This is an implication of the traditional neutral partisanship view, properly understood. It is messier than the new legal ethics but, I believe, better accounts for the normative demands of both the lawyer’s professional role and the moral agency of actors within an institutional role.
Legal Ethics Trivia
From the Texas Center for Legal Ethics, here’s the question of the month: “Are there limits on what attorneys can say about opposing counsel in the courtroom?” Test yourself at this website where you can read a short hypothetical, select an answer, and see your results. So far, only 50% have gotten it right. Will you?
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Conflicts Counsel, Kirkland & Ellis - Chicago. Advise firm attorneys and staff regarding conflict of interest issues associated with new matters and lateral attorney/paralegal candidates. Assist with communicating firm policies and procedures relating to conflicts and intake and make recommendations for changes when appropriate. Learn more and apply here.
Staff Counsel, U.S. Senate Select Committee on Ethics - Washington DC. Responsibilities include providing advice and training to the Senate community regarding ethics rules and laws, reviewing financial disclosure reports, and working on investigative matters. 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.
September 13 — Deadline to Submit for AALS Professional Responsibility Section 2025 Annual Meeting New Voices Workshop. The AALS Professional Responsibility Section invites papers for its program "Professional Responsibility New Voices Workshop" that will take place during the 2025 AALS Annual Meeting, January 7-11 in San Francisco. Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars, and submissions from non-tenure-track faculty are welcome. There is no formal requirement as to the form or length of proposals. Abstracts are welcome. Email your submissions or questions about the workshop to the Chair-Elect of the AALS PR Section, Jon Lee (jon.lee@ou.edu), with "AALS PR New Voices" in the subject of the email.
Wisdom for the Week
“Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system.” — Preamble, ABA Model Rules of Professional Conduct
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
Catch Up
Here’s a list with links to some of the most-read editions of the Legal Ethics Roundup.
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