LER No. 50 - Disbarment for Giuliani, Big Law Salaries = NBA, Faculty Hiring Lawsuit, SCOTUS Ethics Recap, Bankruptcy Judge to be Deposed Over Romance, Stock Recusal, Jobs, Events & More (07.08.24)
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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Hello from Dallas! This past week I spent time in the George W. Bush Presidential Archives researching his Supreme Court shortlists for a new project I’m working on with Hannah Johnson (Cal Western), a sequel of sorts to Shortlisted: Women in the Shadows of the Supreme Court. We will be debuting for the first time our list of minority women shortlisted and/or selected by presidents since the early 1980s at the International Legal Ethics Conference in Amsterdam next week. If you happen to be attending the conference, please reach out. It would be great to say hello.
I also spoke with Washington Post reporter Justin Jouvenal for an article he wrote reflecting on all of the ethics issues confronted by the Supreme Court this past year. More on that below under Headline #1. Let’s turn to the headlines now.
Highlights from Last Week - Top Ten Headlines
#1 The Term in SCOTUS Ethics. From the Washington Post: “The Supreme Court term that ended this week played out on a split screen: The justices issued blockbuster rulings that pushed the law sharply to the right, while outside the court some justices were buffeted by new ethics allegations that stoked questions from critics about their impartiality. The dynamics may not seem related, but legal experts say they have mutually reinforced doubts among a large swath of the country over whether the nation’s highest court can be a neutral interpreter of the law. … The Supreme Court released a long-awaited code of conduct early in the term, hoping to put to rest controversies such as the revelation last year that Thomas and Alito took unreported trips funded by wealthy benefactors. … In announcing the code, the court said it wanted to correct a public misunderstanding ‘that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.’ But experts in judicial ethics panned the lack of an enforcement mechanism or specificity about lavish gifts or when a justice should recuse. Renee Knake Jefferson, a University of Houston Law Center professor specializing in legal ethics, called the code ‘ceremonial at best.’ ‘It does not address the issues that were very concerning to the public,’ she said.” Read more here.
#2 Permanent Disbarment in NY for Rudy Giuliani. From the AP: “Rudy Giuliani, the former New York City mayor, federal prosecutor and legal adviser to Donald Trump, was disbarred in New York on Tuesday after a court found he repeatedly made false statements about Trump’s 2020 election loss. The Manhattan appeals court ruled Giuliani, who had his New York law license suspended in 2021 for making false statements around the election, is no longer allowed to practice law in the state, effective immediately. ‘The seriousness of respondent’s misconduct cannot be overstated,’ the decision reads. Giuliani ‘flagrantly misused’ his position and ‘baselessly attacked and undermined the integrity of this country’s electoral process. In so doing, respondent not only deliberately violated some of the most fundamental tenets of the legal profession, but he also actively contributed to the national strife that has followed the 2020 Presidential election, for which he is entirely unrepentant,’ the court wrote.” Read more here.
#3 Discipline Claims Continue Against MI Lawyers in Election Fraud. From Law360: “The Michigan Attorney Discipline Board has refused to dismiss misconduct claims against six attorneys for challenging the results of the 2020 election in the Great Lakes State and ordered their disciplinary proceedings to move forward.” Read more here.
#4 Northwestern Law Sued Over Hiring Practices. From the ABA Journal: “Spurred on by the U.S. Supreme Court’s 2023 ban of race considerations in college admissions, a conservative group filed a lawsuit against the Northwestern University Pritzker School of Law on July 2, charging that it discriminates against white men in hiring faculty and in choosing articles for its law review. The suit was filed by Faculty, Alumni and Students Opposed to Racial Preferences in federal court in Chicago on behalf of three unnamed white men who allege that they cannot compete for faculty positions. Reuters and the New York Times have coverage of the suit. America First Legal, a conservative legal group led by advisers to former President Donald Trump, along with conservative attorneys Jonathan F. Mitchell and Judd Stone, represent Faculty, Alumni and Students Opposed to Racial Preferences. ‘This is the first of many lawsuits that will be filed against universities that refuse to implement colorblind and sex-neutral faculty-hiring practices,’ Mitchell said in a July 2 press release.” Read more here. Lots of scholars, including Meera Deo (Southwestern), Eric Segal (Georgia State), India Thusi (Indiana), and Maybell Romero (Tulane) took to Twitter/X speaking out against the lawsuit.
#5 Deposition Set for Bankruptcy Judge Who Resigned Over Romantic Conflicts. From Bloomberg: “A former judge tied up in litigation related to his relationship with a onetime Jackson Walker LLP partner agreed to let the Texas law firm depose him over key questions about the romance. Jackson Walker and David R. Jones, the former Houston bankruptcy judge, agreed to a seven-hour deposition on July 18 on topics related to his previously-secret relationship with attorney Elizabeth Freeman. The questioning will come as Jackson Walker battles a government effort to claw back more than $13 million in fees the firm collected in cases that were handled by Jones, while it employed Freeman.” Read more here.
#6 Stock Conflict from Spouse Required Recusal. From CNN: “A US appeals court threw out the dismissal of an antitrust lawsuit accusing 10 large banks of overcharging investors on corporate bonds, saying the trial judge should have been recused because his wife owned stock in one of the banks. The 2nd US Circuit Court of Appeals in Manhattan said that while US District Judge Lewis Liman ‘almost certainly unknowingly’ had a conflict of interest, his partiality could reasonably be questioned because his wife’s ownership of Bank of America stock created an ‘appearance of impropriety.’ A spokesman for the Manhattan federal court, where Liman works, declined to comment. Tuesday’s unsigned decision came nearly three years after a Wall Street Journal investigation found that more than 130 federal judges had since 2010 violated federal law and judicial ethics by overseeing cases involving companies in which they or family members owned stock.” Read more here. And revisit LER No. 7 for more about the Wall Street Journal investigation, which led to Congressional hearings, including testimony from me.
#7 Lawyer Salaries Compared to NBA. From the New York Times: “Hotshot Wall Street lawyers are now so in demand that bidding wars between firms for their services can resemble the frenzy among teams to sign star athletes. Eight-figure pay packages — rare a decade ago — are increasingly common for corporate lawyers at the top of their game, and many of these new heavy hitters have one thing in common: private equity.” Read more here.
#8 “Recent Reports of Law Schools’ AI Adoption Have Been Greatly Exaggerated.” From LawSites: “This recent Reuters story caught my attention: More than half of law schools now offer classes on AI,’ it said, citing a new survey conducted by the American Bar Association. Other reports in the news and on LinkedIn sounded a similar takeaway. Indeed, the survey, AI and Legal Education Survey Results 2024, recently released by the ABA’s Task Force on Law and Artificial Intelligence, found that 55% of the law schools that responded to the survey now offer classes dedicated to teaching students about AI. Even more, the survey said, ‘an overwhelming majority (83%) reported the availability of curricular opportunities, including clinics, where students can learn how to use AI tools effectively.’ But here’s the rub: According to the ABA, there are 197 accredited law schools in the United States. This survey said it was sent to 200 law school deans, so it must have included some unaccredited schools. Of those 200 schools, just 29 replied. So when the survey said that 55% of respondents now offer AI classes, it meant just 16 law schools. Do the math: That is 8% of all law schools, not 55%.” Read more here.
#9 No Discipline for Lawyer Acting Only as Fiduciary. From Law360: “A Georgia lawyer did not violate attorney rules when she allegedly mishandled trust funds since she was managing those funds only as a fiduciary and not as a lawyer, the Georgia Supreme Court ruled Tuesday.” Read more here.
#10 Lawyer’s Press Release May Be Used as Malpractice Evidence. From Law360: “The Michigan Supreme Court on Tuesday left in place an appellate ruling that said comments by self-proclaimed ‘America's most famous trial lawyer’ during a press conference can be used in a malpractice suit brought against him by a former client. The Michigan Supreme Court denied Geoffrey Fieger's application for leave to appeal a December judgment from a Michigan Court of Appeals panel that said a jury can hear statements Fieger made at a press conference about a case he said he thought was worth $50 million. The justices said they were not persuaded that the issue should be reviewed by the state's top court. The intermediate appellate ruling in December said a press release and statements Fieger, of Fieger Law PC, made about the strength of a negligence suit can be used as evidence in an estate's legal malpractice case because the comments are relevant to Fieger's credibility as a witness and contradict his defense that the underlying suit is meritless.” Read more here.
Recommended Reading — New Scholarship
“Cannabis Law Practice: Lessons for the Legal Profession in the Twenty-First Century” by Eli Wald (Denver). From the abstract:
The gradual states-driven legalization of cannabis, first medicinal marijuana followed by recreational marijuana, combined with decreased enforcement of federal law, has led to the emergence and growth of the marijuana industry and with it increased demand for cannabis legal services. This Article is the first to study cannabis law practice in the United States. In addition to answering fundamental questions about this growing area of law practice, including who cannabis lawyers are, where they practice, and what ethical challenges they face, the Article also investigates the insights cannabis law practice reveals and the lessons it teaches about the American legal profession.
“AI Now” by Rachelle Holmes Perkins (George Mason). From the abstract:
Legal scholars have made important explorations into the opportunities and challenges of generative artificial intelligence within legal education and the practice of law. This Article adds to this literature by directly addressing members of the legal academy. As a collective, law professors, who are responsible for cultivating the knowledge and skills of the next generation of lawyers, are seemingly adopting a laissez faire posture towards the advent of generative artificial intelligence. In stark contrast to law practitioners, law professors generally have displayed a lack of urgency in responding to the repercussions of this emerging technology. This Article contends that all law professors have an inescapable duty to understand generative artificial intelligence. This obligation stems from the pivotal role faculty play on three distinct but interconnected dimensions: pedagogy, scholarship, and governance. No law faculty are exempt from this mandate. All are entrusted with responsibilities that intersect with at least one, if not all three dimensions, whether they are teaching, research, clinical, or administrative faculty. It is also not dependent on whether professors are inclined, or disinclined, to integrate artificial intelligence into their own courses or scholarship. The urgency of the mandate derives from the critical and complex role law professors have in the development of lawyers and architecture of the legal field.
“Re-Regulating UPL in an Age of AI” by Ed Walters. From the abstract:
States regulate the Unauthorized Practice of Law as a way to protect consumers from fraudulent, negligent, or incompetent legal services. Although states have not agreed on what specifically constitutes the "practice of law," there has been a broad consensus that if software can do the work, it does not constitute the practice of law. That definition is on a collision course with artificial intelligence tools, which can quickly and inexpensively provide services that historically would qualify as UPL. This Essay suggests that states would do little to protect consumers by enforcing UPL statutes against software developers, that instead private rights of action for fraud, misrepresentation, or negligence would strike a more effective balance to empower assistance to self-represented litigants while still protecting them from harms. At a time when software tools might be used to narrow the access to justice gap, the chilling effect of vague UPL statutes would do little to protect consumers.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Director, Senior Corporate Counsel, Global Ethics & Integrity, Salesforce - London or Dublin. Looking for a talented and collaborative ethics and compliance professional with significant investigations, public sector ethics and enablement experience in high-risk regions. Learn more and apply here.
Senior Lead Counsel, Ethics Senior Officer, Citibank - Irving, TX or Tampa, FL/Hybrid. Responsible for the effective management of ethics-related investigations across control and enterprise-support functions within North and Latin America. 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
“Ethics is knowing the difference between what you have a right to do and what is right to do.” — Justice Potter Stewart
Keep in Touch
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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.
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