LER No. 49 - Lawyer Speech Rights, RIP Judge Rothman, High Court Gift Ban Act, GA Judge Removed, AI Opinions, Ethics History, Jobs, Events & More (07.01.24)
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 Flint! I was here for a few days last week as part of my role serving on the Michigan State University Board of Trustees. Each summer we travel to different parts of the state for our board retreat. It’s been nearly a decade since I spoke to NPR’s Steve Carmody about out-of-state lawyers who descended upon Flint when the city’s water supply became contaminated with lead in 2014. Here’s an excerpt from our interview in April 2016:
CARMODY: Renee Knake is a legal ethicist at the Michigan State University Law School. She concedes the system isn't perfect, but at least it's a way for people in Flint to get the legal help they need.
KNAKE: I guess my larger problem as an ethicist is, what does it mean to be in a country where people with basic needs like clean water don't have legal representation to help them navigate the system when government has failed?
CARMODY: One thing most lawyers here agree on is that resolving these lawsuits could take years, perhaps more than a decade. That would mean Flint children who drank lead-tainted tap water when they were in the first grade might be set to graduate from high school by the time the legal wrangling is done. For NPR News, I'm Steve Carmody in Flint.
Listen to the full piece here.
Steve was right about one thing, for sure. Resolving the lawsuits is taking more than a decade from the initial contamination, though it seems to be wrapping up. From MLive earlier this month: “A federal judge has given preliminary approval to a $25-million settlement negotiated by attorneys for Flint property owners, businesses and adults and a consultant hired by the city during its water crisis.” Read more here. (And those first graders indeed will soon be heading to college in fall 2026.)
This week we celebrate the Fourth of July, which in addition to a national holiday is also my wedding anniversary. When Wallace and I were married in 2020, my son read the poem “Believer’s Hymn for the Republic” by Amanda Gorman at our ceremony. Gorman wrote the poem to honor Independence Day while serving as the inaugural Youth Poet Laureate of the United States. You’ll find an excerpt below in “Wisdom for the Week” and you can watch her full performance here. I hope you find time to gather with family and friends. Happy 4th!
Highlights from Last Week - Top Ten Headlines
#1 Lawyers Criticizing Judges & the First Amendment. From Law360: “The American Civil Liberties Union came to the defense of two Florida attorneys facing discipline before the state's high court over critical remarks about an Orlando judge's order in a discrimination case, arguing that suspending their licenses for 30 days would violate the First Amendment.” Read more here.
#2 RIP Los Angeles County Judge David Rothman, Ethics Expert. From the California Courts Newsroom: “Chief Justice Issues Statement on Passing of Judge David Rothman. Retired Los Angeles County judge and co-author of the Judicial Conduct Handbook was a leader in judicial education on the subject of judicial ethics.” Read more here. According to his obituary, he often used the quote: “The judge must be long of fuse and somewhat thick of skin.” Also from his obituary: “He received his JD from The University of Chicago Law School in 1962. He was Deputy Attorney General in the Los Angeles Office of the California Attorney General out of law school, and spent nine years in private practice. During that time, he became deeply involved in democratic politics, and he served as a volunteer attorney with the ACLU. He defended demonstrators who were arrested at an anti-war rally in Century City, and helped establish a program to obtain presidential pardons for draft resisters once the Vietnam War ended. Governor Jerry Brown appointed him to the bench in 1976.”
#3 Congress Considers High Court Gift Ban Act. From a June 25, 2024 Press Release: “Today, Representatives Jamie Raskin (MD-08) and Alexandria Ocasio-Cortez (NY-14) introduced the High Court Gift Ban Act to prohibit Supreme Court justices from receiving gifts valued at more than $50, marking a significant step towards restoring faith and integrity in the embattled Roberts Court.” Read more here.
#4 “Law Firm Accused of Preventing Access to Patent Witness.” From Bloomberg Law: “Quinn Emanuel called Columbia University’s appellate sanctions bid to introduce new evidence of the law firm’s alleged misrepresentations while defending NortonLifeLock Inc. in a multimillion-dollar patent dispute with the school ‘utterly meritless.’ The Ivy League school told the Federal Circuit in a June 11 motion that a fresh declaration it obtained from former Norton computer scientist Marc Dacier will prove Quinn Emanuel misled the district court to keep his communications out of trial in 2022.” Read more here.
#5 Congressional Inquiry Into Wright Sexual Misconduct Allegations. From Law360: “The chair of the U.S. House Committee on Education and the Workforce has requested information in a letter to the president of George Mason University and its law school's dean regarding the institution's response to sexual misconduct allegations against former professor Joshua Wright, who is also a former Federal Trade Commission commissioner.” Read more here. Download the letter from Virginia Foxx (R), Chair of the U.S. House Committee on Education here. (And revisit last week’s Roundup, Headline #9 for more background if you missed it.)
#6 Georgia Probate Judge Removed and Barred Seven Years from Re-Election. From Bloomberg: “A Georgia probate judge was ordered off the bench and barred from running again for seven years after Georgia’s highest court on Tuesday found the judge showed ‘flagrant disregard for the law, court rules, and judicial conduct rules.’ Douglas County Probate Court Judge Christina Peterson violated Georgia’s code of judicial conduct during several incidents, the Georgia Supreme Court said in an unsigned decision. They include jailing a woman for contempt of court ‘without explanation or justification’ and using a panic button to summon court staff when there wasn’t an emergency, the court said.” Read more here.
#7 Lawsuit by Judge Disciplined Over Refusal to Officiate Same-Sex Weddings Will Proceed. From Reuters: “Texas' highest court on Friday reinstated a lawsuit by a local judge in Waco whose refusal to officiate at same-sex weddings drew a public warning by a state judicial ethics commission. The Texas Supreme Court in a 8-1 vote said Dianne Hensley, an elected Texas justice of the peace who hears small claims and misdemeanor cases, could pursue her lawsuit for now asserting the State Commission on Judicial Conduct violated her religious rights as a Christian.” Read more here.
#8 Federal Investigation Against Texas AG Ken Paxton Heating Up. From Houston Public Media: “Texas Attorney General Ken Paxton fought for years to protect his allies from questions about his alleged corruption. Now, they may have to testify under oath about the accusations, according to a new federal court ruling. A state agency recently asked the U.S. Fifth Circuit Court of Appeals to halt grand jury testimony in a case involving ‘alleged criminal wrongdoing by senior Agency personnel.’ On June 20, the court filed its decision. Agency employees could not avoid testifying if a crime was potentially committed, the decision read.” Read more here.
#9 SCOTUS Accidentally Releases Another Abortion Opinion. From NPR: “Supreme Court has another embarrassing misstep in the release of an abortion opinion. As the justices were announcing opinions on other matters, the court briefly posted a decision that would reinstate a lower court order allowing hospitals in Idaho to perform emergency abortions.” Read more here.
#10 Generative AI Ethics Opinions - PA & NC. Two headlines for #10. First, from Lawsites: “A new legal ethics opinion on the use of generative AI in law practice makes one point very clear: lawyers are required to maintain competence across all technological means relevant to their practices, and that includes the use of generative AI. The opinion, jointly issued by the Pennsylvania Bar Association and Philadelphia Bar Association, was issued to educate attorneys on the benefits and pitfalls of using generative AI and to provide ethical guidelines. While the opinion is focused on AI, it repeatedly emphasizes that a lawyer’s ethical obligations surrounding this emerging form of technology are no different than those for any form of technology.” Read more here. Second, from the U.S. District Court for the Western District of North Carolina comes a standing order that requires lawyers to certify AI was not used in writing briefs. Download the order here.
Recommended Reading — Add This One to Your Summer Books List
Somehow the book Servants of the Damned by David Enrich wasn’t on my radar screen when I put together a summer reading list of books for you in our Memorial Day edition of the Roundup. (Head back to LER No. 44 if you’re still looking for ideas.) Once I started reading it last week, I couldn’t put it down. Chapter 4 — “Advertisers-At-Law” — offers a surprising and fascinating look at the history behind Bates v. Arizona State Bar, the Supreme Court case that struck down a nationwide ban on lawyer advertising in the 1970s. I’ve researched and written about the case extensively (see, for example, The Behavioral Economics of Lawyer Advertising), but Enrich uncovered important details even I didn’t know. It’s worth reading for this history alone, which Enrich returns to throughout the book.
From the publisher:
To tell this story, Enrich focuses on Jones Day, one of the world’s largest law firms. Jones Day’s narrative arc—founded in Cleveland in 1893, it became the first law firm to expand nationally and is now a global juggernaut with deep ties to corporate interests and conservative politics—is a powerful encapsulation of the changes that have swept the legal industry in recent decades.
Since 2016, Jones Day has been in the spotlight for representing Donald Trump and his campaigns (and now his PACs)—and for the fleet of Jones Day attorneys who joined his administration, including White House Counsel Don McGahn. Jones Day helped Trump fend off the Mueller investigation and challenged Obamacare. Its once and future lawyers defended Trump’s Muslim ban and border policies and handled his judicial nominations. Jones Day even laid some of the legal groundwork for Trump to challenge the legitimacy of the 2020 election.
But the Trump work is but one chapter in the firm’s checkered history. Jones Day, like many of its peers, have become highly effective enablers of the business world’s worst misbehavior. The firm has for decades represented Big Tobacco in its fight to avoid liability for its products. Jones Day worked tirelessly for the Catholic Church as it tried to minimize its sexual-abuse scandals. And for Purdue Pharma, the maker of OxyContin, as it sought to protect its right to make and market its dangerously addictive drug. And for Fox News as it waged war against employees who were the victims of sexual harassment and retaliation. And for Russian oligarchs as their companies sought to expand internationally.
In this gripping and revealing new work of narrative nonfiction, Enrich makes the compelling central argument that law firms like Jones Day play a crucial yet largely hidden role in enabling and protecting powerful bad actors in our society, housing their darkest secrets, and earning billions in revenue for themselves.
Learn more and purchase here.
Ethics History
Last week, Time Magazine published a piece by Michael Bobelian focused on some important legal ethics history. Here’s an excerpt:
Over the past year, news outlets have uncovered extravagant trips and gifts Justices Alito and Clarence Thomas received from wealthy benefactors, often without disclosing them as required by federal law. … And the revelations haven’t been limited to the conservative justices: Sonia Sotomayor’s staff apparently pressured institutions hosting her appearances to purchase her books. (Thomas and Alito have defended their actions and the Supreme Court has said its staff help the Justices comply with ethics guidelines.)
These scandals stem directly from a failed opportunity to impose a binding ethics code on the justices after a bombshell scandal in the late 1960s forced Justice Abe Fortas to resign. While his peers pressured Fortas into departing from the Court and the incident sparked efforts to clarify the ethics code applying to the federal judiciary, these efforts had a fatal flaw.
They left it to the justices to decide how to follow these guidelines. And time and again, the justices have maintained that while they voluntarily subscribe to portions of the guidelines, they retain absolute discretion over their implementation. In serving as their own judges, the justices have shielded their ethical decision-making from outsiders and one another. As a result, the Court’s ethical tenets have remained vague, unenforceable, and largely exempt from scrutiny.
Read more here.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Conflicts Attorney, Steptoe - Washington DC. Responsible for applying ethics rules to review and clear conflict of interest issues for the lateral hiring process;
preparing communications to partners and stakeholders clearly identifying all potential issues identified in lateral conflicts reports to facilitate clearance process; and more. Learn more and apply here.Conflicts Attorney, Wilson Sonsini - Multiple Locations/Remote. Responsible for assisting with the review, identification and resolution of any potential conflicts issues with respect to clients, matters, as well as new hires. The Conflicts Attorney will be actively following-up on conflicts clearance with all responsible parties handling new engagements. The Conflicts Attorney will also be conducting comprehensive, daily reviews of firm conflicts of interest reports, resolving any identified issues in a timely manner. 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
Let this fourth of July
Move forth our cry to redeem the dream.
As we remember those words forever ignited
That we the people have so long heard and recited.
That we are right to stand
But are revolutionary when we stand united.
— Amanda Gorman, Believer’s Hymn for the Republic
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.
Catch Up
Here’s a list with links to some of the most-read editions of the Legal Ethics Roundup.
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