LER No. 48 - Discipline Secretly Squashed, Couple Loses Law License - Wife Blamed, Wade Won't Stop Talking But Should w/ DA Willis Ethics Appeal Pending, Ethics History, Jobs, Events & More (06.24.24)
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.
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Highlights from Last Week - Top Ten Headlines
#1 “North Carolina Supreme Court Secretly Squashed Discipline of Two GOP Judges Who Admitted to Violating Judicial Code.” From ProPublica: “Last fall, out of public view, the North Carolina Supreme Court squashed disciplinary action against two Republican judges who had admitted that they had violated the state’s judicial code of conduct, according to three sources with direct knowledge of the decisions. One of the judges had ordered, without legal justification, that a witness be jailed. The other had escalated a courtroom argument with a defendant, which led to a police officer shooting the defendant to death. The Judicial Standards Commission, the arm of the state Supreme Court that investigates judicial misconduct by judges, had recommended that the court publicly reprimand both women. The majority-Republican court gave no public explanation for rejecting the recommendations — indeed, state law mandates that such decisions remain confidential.” Read more here.
#2 Latest Blame-the-Wife Defense - Law Licenses Suspended for Married Couple Over Missing Client Funds. From CBC News: “A husband-and-wife law firm in Toronto has been shut down, lenders have moved to seize their family homes, and they're facing 15 lawsuits and a police investigation after millions of dollars in client money went missing from the firm's trust accounts. The saga of Nicholas Cartel and his wife, Singa Bui, has plenty of twists and turns, not the least of which is what happened to the huge sums of money allegedly embezzled from Cartel & Bui LLP. In interviews and again during a court hearing on Thursday, Cartel asserted he never had a role in financially managing the firm that bears his name, never had access to the trust account and maintained a separate non-real-estate practice. His wife, he said, handled all that.” Read more here.
#3 “This Judge Made Houston the Top Bankruptcy Court. Then He Helped His Girlfriend Cash In.” From the Wall Street Journal: “Law firm Kirkland & Ellis brought multibillion-dollar cases to David R. Jones’s court, aided by a local attorney who lived with the judge; Why did no one look into it? … Jackson Walker didn’t publicly disclose what it learned about the Jones-Freeman relationship at the time. Kirkland also kept quiet about the allegation. Jones remained Houston’s chief bankruptcy judge, and Freeman continued to work on Kirkland cases involving Jones. It might have stayed that way. But Van Deelen, a pugnacious 74-year-old graduate of Stanford University and Massachusetts Institute of Technology, refused to let it rest. This account is based on interviews with lawyers and bankers who worked in the Houston bankruptcy court, people who knew Jones and Freeman, people familiar with Kirkland and Jackson Walker, court records, and data from Debtwire, a financial and legal information provider. Jones declined to comment. Freeman, Kirkland and Jackson Walker denied any wrongdoing in court filings.” Read more here (gift link).
#4 “Will former Dane County Judge Jim Troupis lose his law license over false elector plot?” From Wisconsin Public Radio: Former Dane County Judge Jim Troupis could lose his Wisconsin law license over his role in a plot to overturn the 2020 election results. Wisconsin’s Democratic Attorney General Josh Kaul filed forgery charges earlier this month against Troupis and two other Trump allies — Kenneth Chesebro and Michael Roman. They’re charged with helping to submit official-seeming paperwork, claiming that Donald Trump won Wisconsin, even though the former Republican president lost by more than 20,000 votes.” Read more here.
#5 The “Extraordinary” Effort by Two Judges to Persuade Another to Step Aside. From the New York Times: “Shortly after Judge Aileen M. Cannon drew the assignment in June 2023 to oversee former President Donald J. Trump’s classified documents case, two more experienced colleagues on the federal bench in Florida urged her to pass it up and hand it off to another jurist, according to two people briefed on the conversations. … The extraordinary and previously undisclosed effort by Judge Cannon’s colleagues to persuade her to step aside adds another dimension to the increasing criticism of how she has gone on to handle the case.” Read more here (gift link).
#6 Wade Keeps Giving Interviews, But Shouldn’t. Apparently he’s not a fan of the Legal Ethics Roundup (or he doesn’t appreciate my advice - see Headline #10, LER No. 47). From Newsweek: “Former Georgia special prosecutor Nathan Wade was criticized across social media on Wednesday for new comments about Fulton County District Attorney Fani Willis as one law professor notes, ‘This is gross.’ … On Tuesday, Wade appeared on The Daily Show's segment of Choppin' It Up With 'Quon in which his romantic relationship with Willis was brought up as the in-character Marlon Wayans playing 'Quon asked suggestive questions.” Read more here. H/T Anthony Michael Kreis (Georgia State).
#7 More Pressure on SCOTUS (Lack of) Gift Disclosures. From Law 360: “A pair of Democratic lawmakers have asked the judiciary's governing body for an update on its review of U.S. Supreme Court Justice Clarence Thomas' failure to disclose years of luxury gifts.” Read more here.
#8 Horwitz and Blackman on “Judicial Ethics and Corruption: Celebs, Authors, and Medicis.” From Paul Horwitz (Alabama) at PrawfsBlawg: “In a pair of posts at the VC, Josh Blackman raises some valuable questions about modern judicial ethics.” Read more here. (And revisit my thoughts on Blackman’s recent article proposing a slate of ethics reforms for the judiciary at Bonus Content No. 14).
#9 #MeToo & the Legal Academy. This story was repeatedly in the headlines when I launched the Roundup last August (see Roundup No. 3 and No. 4) because female law professors opened up publicly about their own #MeToo experiences. And I’ve written about judicial ethics in the #MeToo world in the Fordham Law Review. Reading this three-part series from the Wall Street Journal reminds me that the legal academy needs to do better. From the WSJ: “For Years, an Esteemed Law Professor Seduced Students. Was He Too Important to Fire? Joshua Wright’s achievements drew millions in donations to his university, but complaints about his personal behavior and cozy ties with Google, Facebook and other tech giants went nowhere.” Read Part I, Part II, and Part III (gift links for all).
#10 Michigan Governor Gretchen Whitmer Speculates on Gen X President for 2028 and Critiques SCOTUS for Lack of Ethics. From the New York Times:
NYT: The Supreme Court has been mired in controversy, especially around Justices Alito and Thomas. Do you think they need to recuse themselves from ruling on anything to do with the 2020 election and President Trump?
Whitmer: As a lawyer, my understanding is that that would be appropriate. The Supreme Court operates under their own rules. It’s really something that gives me great anxiety, this distrust in institutions that have sustained this democracy for so long. And we sadly have seen so many Americans get persuaded by false information that undermines our institutions. And then when you see justices that appear to have a real conflict not recuse themselves, that further erodes our confidence in these institutions that sustain this democracy. It’s very concerning.
NYT: Do you think the court needs to be expanded? Because it’s a 6-3 majority, and if things like abortion rights, for example, are ever going to be reconsidered, the current makeup of the court isn’t one that is favorable to Democrats.
Whitmer: Whether or not the court gets expanded or whether or not we just ensure that President Biden is the one in that office who makes the next handful of appointments, all of these things work toward the same end of restoring some integrity into our government, which is desperately needed.
Read more from the NYT here (gift article). And pre-order True Gretch: What I’ve Learned About Life, Leadership, and Everything in Between, which hits the shelves July 9. (It’s a quick, insightful read!)
This Week in Ethics History
June 26, 1978. This date marks the first display of the rainbow flag as representing LGBTQ pride, flown as part of the San Francisco Gay Freedom Day parade. Given the latest SCOTUS flag flying drama with Justice Samuel Alito and his wife, this moment takes on new meaning in ethics history. Interestingly, on the same date in 2015, the US Supreme Court declared same-sex marriage bans unconstitutional in Obergefell v. Hodges and on the same date in 2013, the US Supreme Court struck down the provision in the Defense of Marriage Act defining marriage under federal law as a union between a man and a woman in United States v. Winsdor.
Recommended Reading — New Scholarship
“Lawyers in Backsliding Democracy” by Scott Cummings (UCLA). From the abstract:
This Article explores the role of lawyers in democratic backsliding—the degradation of democratic institutions and practices using law rather than violence. The Article’s central aim is to set an agenda and outline an approach to studying the professional paradox at the center of backsliding: why and how lawyers attack the rule of law. It thus seeks to shift the scholarly lens from the conventional view of lawyers as defenders of democracy to investigate lawyers as authors of autocracy. Toward that end, the Article theorizes the legal profession as a site of backsliding, outlining a framework that positions lawyers in relation to distinct pathways of autocratization on the slow road of gradual democratic decline and the fast track of imminent democratic attack. On the slow road, the Article draws upon evidence of structural change in the American legal profession to suggest how the erosion of key democratic functions performed by lawyers increases backsliding risk by reducing trust in the legal system and commitment to the rule of law. On the fast track, using the 2020 Stop the Steal campaign as a case study, the Article shows how lawyers in moments of democratic crisis engage in legal mobilization to weaponize distrust, fusing legal and media tactics to legitimize false claims and justify invocation of extraordinary power. The Article concludes by calling for changes to U.S. professional regulation and education to strengthen democratic resilience, while mapping a research agenda for comparative study of antidemocratic lawyering in unsettled times.
“The Deepfake Defense—Exploring the Limits of the Law and Ethical Norms in Protecting Legal Proceedings from Lying Lawyers” by Rebecca Delfino (Loyola Law School Los Angeles). From the abstract:
Thousands of audiovisual images documented the insurrectionists who stormed the United States Capitol on January 6, 2021. Authorities subsequently collected those images and charged some for their criminal conduct. Given the overwhelming audiovisual evidence implicating the insurrectionists, it should be impossible to assert a plausible defense claiming that those unmistakably depicted in the images were not present. Right? Wrong. As the defense in the federal criminal trial of January 6th insurrectionist leader Guy Reffitt illustrated, the emergence of “deepfakes” has changed the landscape of plausible defenses to crimes. Reffitt led the attack on the Capital. Videos and other visual images showed him at the head of the crowd advancing on the Capitol’s West Terrace. He was arrested and charged with multiple crimes. And although the evidence, including audiovisual images, against Reffitt, was clear and overwhelming, his lawyer undermined it, arguing to the jury that the evidence against Reffitt was a “deepfake” – an audiovisual recording created using Artificial Intelligence technology that allows anyone with a smartphone to believably map one person’s movements and words onto the image of another person. Unfortunately, the law does not provide a clear response to Reffitt’s lawyer’s reliance on deepfakes as a defense.
But this much is clear—the “deepfake defense” is a new challenge to our legal system’s adversarial process and truth-seeking function. Because the norms of professional ethics require lawyers to advocate zealously, deepfakes invite lawyers to raise objections and arguments to evidence to exploit juror bias and skepticism about what is real. Thus, lawyers may plant the seeds of doubt in jurors’ minds to question the authenticity of all digital audio and visual images, even those counsel knows to be genuine.
Currently, no rule of procedure, ethics, or legal precedent directly addresses the presentation of the “deepfake defense” in court. The existing standards provide scant guidance because they were developed before the advent of deepfake technology. As a result, they do not solve the concern of how to deter lawyers from exploiting it. Although in the last several years, legal scholarship and the popular news media have addressed certain facets of deepfakes, there has been no in-depth commentary on the “deepfake defense.” This article is the first to explore the deepfake defense, locating it within the historical and current framework of lawyers’ efforts to fabricate evidence and the laws and the practice norms that exist to curb that conduct. It proposes a reconsideration of the ethical rules governing candor, fairness, and the limits of zealous advocacy and urges a re-examination of the court’s role in sanctioning such conduct. Thus, this article offers novel proposals to guide the way forward for lawyers and courts as they traverse this new technological landscape.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Attorney Advisor, Department of the Interior, Office of the Solicitor, Departmental Ethics Office - Reston, VA. The Departmental Ethics Office is seeking a highly motivated, self-starter to join their U.S. Geological Survey (USGS) Ethics Team. This position provides guidance on novel and cross-cutting issues related to conflict-of-interest provisions; the Standards of Ethical Conduct for Employees of the Executive Branch; the Department of the Interior supplemental standards and employee conduct rules; and other standards of conduct or behavior. Learn more and apply here.
Conflicts Attorney, Nixon Peabody - Multiple Locations/Hybrid. Responsible for identifying and resolving potential legal and business conflicts. Provide analysis and critical assessment of due diligence to identify, report and address potential ethical and business conflicts of interest and client worthiness issues related to new firm business, firm growth opportunities and newly hired personnel. Proactively engage in discussions with attorneys, staff and team members to gather information and work to resolve conflicts of interest or other business issues. Assist in drafting and reviewing conflict waivers, engagement letters, outside counsel agreements and other documents to ensure compliance with ethical rules and firm policies and standards. 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
“The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.” — 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
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