LER No. 51 - Themes Edition: SCOTUS Ethics, Election Denial Disbarments, #MeToo in Judiciary + Academy, Romantic Conflicts, Ethics of Access to Justice, Generative AI & More (07.15.24)
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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Greetings from Amsterdam, where I’m presenting at the International Legal Ethics Conference (ILEC) this week. Please say hello if you’re attending too. On Wednesday, I’ll be speaking about lawyers and the rule of law with Ben Barton (Tennessee) and Steven Vaughan (University College London) and about gender equality in the judiciary with Hannah Johnson (Cal Western), Anqi Shen (Northumbria University), Maria Havelkova (Comenius University), and Ching-fang Hsu (National Chi Nan University). Here’s the full schedule.
This biennial conference is a special one for me. My first was in 2008 as a new law professor not yet in a tenure track appointment. At the time my daughter Grace (now 16) was just a few months old, so I flew over to Australia to give my talk — Beyond Atticus Finch: Lessons on Ethics and Morality from Lawyers and Judges in Postcolonial Literature — and hopped right back on the plane home. I managed to catch a session led by the late Deborah Rhode where she proposed creating the International Association of Legal Ethics to help sustain what was then a fledgling effort to gather legal ethicists from around the globe for regular scholarly exchanges. Long story short, I believed in what she wanted to build and I’ve been grateful to play a small part along the way, now serving on the Association’s Board of Directors. When I spent my sabbatical at Stanford Law School in 2015, Deborah and I would take a walk every Thursday. Usually it involved escorting her puppy Stanton, but one afternoon she had a different plan. Instead, we strolled to a bank on Stanford’s campus, where she opened up an account for the Association and wrote the check for its first donation. I know she’d be thrilled with the more than 275 attendees who have gathered for ILEC X at the University of Amsterdam this week. For more history and a list of past conferences (including Stanford Law, Fordham Law, University College London, and the University of Melbourne), check out the ILEC website. Wondering where ILEC XI will be held in 2026? I promise you’ll be the first to know!
Highlights from Last Week - Top Five Themes Still in the Headlines Over the Past Year
Believe it or not, we’re approaching the one year anniversary of the Legal Ethics Roundup. As promised last month, this week’s edition explores themes that showed up repeatedly and, as it turns out, all touch on issues that originally motivated me to launch this newsletter. Coincidentally, each theme had its own breaking news this past week too. I believe history and context are essential for understanding the latest headlines. I hope the LER not only keeps you up-to-date but also helps you reflect. Now, let’s dive into the themes *still* in the headlines.
Theme #1: SCOTUS Ethics. Last week included a call for the impeachment of two justices over ethics issues. From NBC News: “Rep. Alexandria Ocasio-Cortez, D-N.Y., introduced articles of impeachment Wednesday against Supreme Court Justices Clarence Thomas and Samuel Alito over their refusal to recuse themselves from certain cases. ‘Absent resignation, they must be removed,’ Ocasio-Cortez said on the House floor, arguing that the two justices pose a threat to the rule of law.” Read more here. Our inaugural Roundup in August 2023 opened with a debate over whether the Supreme Court would adopt an ethics code. LER No. 9 and LER No. 13 tracked various justices’ views on the need for such a code, and LER No. 10 offered the perspectives from commentators and legal ethicists. In LER No. 11, I shared my interview with The Guardian where I was “cautiously optimistic” on the adoption of an ethics code. Bonus Content No. 5 broke the news when the Supreme Court finally unveiled the new ethics code last fall, though as I told the New York Times, the code imposes no actual requirements, which is why we are still seeing headlines like the ones from this past week. In a piece looking back at the past year of SCOTUS ethics, the Washington Post quoted me as calling the code “ceremonial at best.” At worst, I fear the code will perpetuate the lack of meaningful ethics for our Supreme Court. For coverage about last year’s SCOTUS financial disclosures, see LER No. 6, Headline #4 — Justices Alito and Thomas received extensions, which is why they didn’t report until the end of August in 2023. Finally, LER No. 15 covered Justice Thomas’s RV loan, and LER No. 16 summarized proposed ethics reforms from Congress.
Theme #2: Accountability for Election Denial Lawyers. After being permanently disbarred in New York two weeks ago, last week Rudy Giuliani “argued to D.C.'s top court Wednesday that he should keep his law license, pushing back on an ethics board’s effort to disbar him in Washington for arguing the 2020 presidential election was stolen.” Read more from Bloomberg Law here. Also from Bloomberg Law last week: “Trump administration lawyer Jeffrey Clark’s bid to move his disciplinary proceedings to federal court were blocked by an appellate panel Friday.” Read more here. The inaugural Roundup opened with news of lawyers named as co-conspirators with the former president in election fraud and LER No. 4 announced the indictment of these lawyers, some of whom have admitted their guilt (see LER No. 12, LER No. 13, and LER No. 15 - plus Bonus Content No. 4 announcing Sidney Powell’s guilty plea). John Eastman’s disciplinary trial was tracked in LER No. 5, LER No. 7, LER No. 8, and LER No. 13, along with Bonus Content No. 2, which focused on testimony from John Yoo. Eastman is suspended from practice in California and awaiting a final determination about sanctions. Jeffery Clark’s disciplinary trial was tracked in Bonus Content No. 10, LER No. 29, LER No. 30, LER No. 36, and LER No. 37. Disbarment was also recommended for him, and he is awaiting the final outcome.
Theme #3: #MeToo in the Judiciary and the Legal Academy; Romantic Conflicts Among Lawyers and Judges. LER No. 3 was one of the first media sources to report on the allegations of sexual harassment and misconduct surrounding former George Mason law professor Joshua Wright, which eventually led to an extensive investigation by the Wall Street Journal (see LER No. 48) and a Congressional inquiry (see LER No. 49). LER No. 3 also highlighted the work of Aliza Shatzman and her Legal Accountability Project, which aims to address sexual harassment and other workplace misconduct endured by law clerks. She continued to make headlines throughout the year (see LER No. 8, LER No. 38, and LER No. 42) and most recently spoke last week with NPR’s Mary Louise Kelly about the resignation of a federal judge in Alaska who created a hostile work environment for his law clerks. From NPR: “His name is Joshua Kindred. He was appointed by former President Trump to this job that actually has lifetime tenure. But he only served about four years before he took the rare step of resigning. And here's what we know about why. This comes from a 30-page report that was issued last night by judicial authorities. The investigation found he engaged in unwanted and abusive conduct. He had an inappropriate sexual relationship with a former law clerk, and then he actually lied to the chief judge and others about that relationship.” Read more here. Romantic conflicts also were a major theme, including the resignation of federal bankruptcy judge David Jones for failing to disclose a long-term romantic relationship with former Jackson Walker partner Elizabeth Freeman (see LER No. 12, LER No. 15, LER 25, LER No. 33, LER No. 41, and LER No. 46). We also saw Fani Willis come under fire for her romantic relationship with Nathan Wade (see LER No. 26, LER No. 28, LER No. 29, LER No. 30, LER No. 32, and LER No. 48), delaying the Georgia prosecution involving the former president and lawyers listed under Theme #3.
Theme #4: Ethics of Access to Justice. This is a topic I tackle head-on in my book Law Democratized: A Blueprint for Solving the Justice Crisis, and we celebrated its release in Bonus Content No. 9, LER No. 18, and LER No. 22. The ethics of access to justice surfaced regularly in the headlines too — see LER No. 17, LER No. 29, LER No. 31, LER No. 35, and LER No. 41. This past week it was the focus of a Congressional hearing. From Courthouse News Service: “Congress must act to ensure all Americans can afford adequate legal representation, a group of experts told the Senate Judiciary Committee Tuesday, warning that failing to close the gap in access could undermine faith in the U.S. judicial system. ‘The justice gap — which is a chasm, really — is indisputable,’ Nathan Hecht, chief justice of the Texas Supreme Court, told lawmakers during a hearing. ‘People’s need for basic civil legal services greatly exceed their availability because of cost.’” Read more here.
Theme #5: The Impact of Generative AI. Nearly every week some aspect of generative AI has been in the headlines, ranging from concerns of judges (see LER No. 9) to questions about whether reliance on AI can constitute ineffective assistance of counsel (see LER No. 13). Several jurisdictions adopted special rules for disclosing the use of AI in court filings, and numerous state bars formed commissions or task forces to evaluate the ethical obligations for lawyers and judges (see LER No. 3, LER No. 12, LER No. 32, LER No. 35, and LER No. 50 for a sampling). This past week, the Florida Bar announced that it is considering a Rule 11-type of sanctions for filing documents that contain AI-generated errors. From the Florida Bar News: “Asked to consider AI-generated court filings marred by ‘hallucinations,’ Florida Bar rules committees are weighing a state version of Federal Rule 11, which calls for tough sanctions for not being truthful to a court.” Read more here.
And that wraps up our themes edition of the LER. Miss the usual format? Don’t worry — it will return soon. But for the next couple of weeks I’ll continue to mix things up a bit!
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“The problem with a lot of legal officials is not that they’re evil or even stupid, it’s just they’ve gotten used to it.” — G.K. Chesterton, as quoted by Deborah Rhode in a 2020 interview
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