LER No. 55 - Welcome Back! (First Monday Edition 09.09.24)
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 to Year Two of the LER!
Thank you for being here. Welcome to what captivates, haunts, inspires, and surprises me every week in the world of legal ethics. For many of you, we’ve started our Monday mornings together since August 2023. And what a year it has been:
53 Roundups (featuring 500+ Headlines & 100+ Reading Recommendations plus Ethics History, Reform Updates, Pop Culture, Trivia, Events & More) and 16 Bonus Content Posts
150+ Job Listings
1,000+ Subscribers From 47 States and 39 Countries
1,500+ Reader Views Weekly
The Year Ahead
As we enter our second year, my motivations for providing this FREE(!) resource remain the same as when I first launched it. It is not an exaggeration to say that never in the history of the United States has there ever been a greater need to understand the ethical duties of lawyers and judges and to hold them accountable to their professional obligations. Now more than ever the legal profession is in the headlines for questionable ethics, ranging from the United States Supreme Court’s lack of an enforceable ethics code to the criminal indictment of a former president alleged to have conspired with several lawyers to overturn the results of a valid election. The LER will continue covering big issues like these as well as smaller—but equally important—ones. I’m grateful for this community of readers made up of lawyers, judges, law students, academics, journalists, and others who care about the role of legal ethics in our democracy.
I look forward to continuing this service over the coming year, with a few changes based upon reader feedback.
FIRST, one thing that won’t change is cost - as always, the LER remains free to all subscribers. So, if you haven’t subscribed, take a moment now to sign up at the link below and you’ll never miss the latest edition.
SECOND, the LER will be taking a new format. Every Monday you’ll continue to receive a summary of the top ten legal ethics headlines. On the first Monday of the month, you’ll receive a longer version (“First Monday Edition”) with the headlines plus reading recommendations, teaching resources, job postings, events, and other features. And occasionally you’ll receive bonus content posts, free to all subscribers, for breaking news that can’t wait until Monday or for other special announcements.
THIRD, please also consider becoming a paid subscriber, which helps to support this newsletter and demonstrates that you value its content. Paid subscribers also receive special access to past posts which become paywalled after six months. (If you need a comp paid subscription to read an older post, let me know at legalethics@substack.com.)
Finally, while reader comments will no longer be a feature, I welcome feedback as well as news tips, announcements, events, job postings, and reading recommendations via email.
Since this is the first Monday I’m posting during September, you get a “First Monday Edition” even though technically it is the second Monday of the month. Let’s dive in!
This week I’m writing you from Austin, Texas. On Friday, my husband’s portrait ceremony took place at the Supreme Court of Texas. Wallace B. Jefferson is the first African American justice and chief justice in Texas, serving from 2004 until 2013. As it turns out, he is also the last, so far. Yes, you read that correctly. Texas has not had an African American justice on its Supreme Court in more than a decade. At least now, there will be one on the wall among the dozens of portraits displayed in the court building. What we see matters, as I argued in this essay — “Becoming Visible” — about the influence I felt from seeing University of Chicago law professor Soia Mentschikoff’s portrait when I was a law student. Wallace’s portrait contains a few hidden messages. See if you can find them? You can access a larger image of the portrait at this link, along with a speech his son Sam Jefferson wrote about his father’s portrait. Here’s an excerpt:
Since Texas’ admission to the United States, 21 men have held the highly illustrious position, “Chief Justice of the Supreme Court of Texas.” We’ve had four Johns, two Toms, and several lone namesakes including one “Wallace.” But it is far more than his name that made his time on the Court and this portrait truly one of a kind.
All of us have heard about his and my ancestry: his great-great-great grandfather, Shedrick Willis (add an extra “great” for me) was a slave in Texas, owned by the Texas judge and Civil War lieutenant colonel, Nicholas William Battle. The descendant of a slave, owned by a Texas judge, who rose to the highest judicial office in the state. Anyone who has heard my father give a speech knows this story, but I don’t know how many people recognize and appreciate that this is more than a fun fact. …
[I]n 2001 and again in 2004, more than a glimmer of hope came through in Texas: the state chose, elevated, and re-elected my dad as the first African American associate, then Chief Justice. When this happened, it represented far more than a hollow victory for Black people and others who did not look like the status quo. It showed the limitless possibilities available to those who never saw themselves rising above their adversity into positions of leadership and provided a brilliant example of what dedication and focus can achieve. It made me and younger generations believe that the future must be shaped by those who bring their best each day, work with all people, and come prepared with an open and curious mind.
Read the rest of Sam Jefferson’s remarks, “More than a Portrait,” here.
Highlights from the Past Few Weeks - Top Ten Headlines
#1. Michigan Supreme Court Considers New Financial Disclosure Rules for Itself. From Bloomberg Law: “Michigan’s highest court is considering new rules for judicial financial disclosures that would mandate some categories of investments be disclosed for the first time, though the proposal would also cause some high-dollar gifts and sources of income to be left out. … Renee Knake Jefferson, a professor at the University of Houston Law Center who serves on the Michigan State University Board of Trustees, said in an email that the court’s decision to unilaterally propose changes avoids separation-of-powers issues inherent in the legislature attempting to regulate the judiciary. Some observers were optimistic but thought the proposal didn’t go far enough. Fix the Court Executive Director Gabe Roth said the Michigan justices deserve an ‘A for effort’ but that the product is ‘really maybe just a B.’ … Justin Simard, an associate law professor at Michigan State, wrote in an email that while the proposed changes ‘should improve transparency,’ the structure of the system to discipline judges will still make it hard to address conflicts, especially since attorneys who consistently practice in front of them may be reticent to highlight a possible conflict.” Read more here.
#2 Will All Judges in Mexico Become Elected? From the Associated Press: “Mexico’s governing party says judges in the current court system are corrupt, and it wants to push through an extreme proposal to make the country’s entire judicial branch — around 7,000 judges — stand for election. While some countries like Switzerland and the United States elect some judges indirectly or at the local level, outgoing President Andrés Manuel López Obrador wants citizens to vote on every single judge, appeals court member and justice all the way up to the Supreme Court. The president has clashed repeatedly with judges throughout his six-year term, which ends Sept. 30. In its present form, the overhaul has drawn criticism domestically and from abroad and leaves a lot of questions to be answered. As the country’s Senate prepares to debate — and likely vote in favor of — the contentious overhaul, Mexico’s Supreme Court is examining if it can weigh in on challenges to the proposal.” Read more here.
#3 97-Year-Old Judge Newman’s Suspension Extended. From Reuters: “A federal appeals court on Friday extended by another year the suspension of U.S. Circuit Judge Pauline Newman, the nation's oldest active federal judge, following allegations that the 97-year-old was no longer fit to serve. The U.S. Court of Appeals for the Federal Circuit's 11-member Judicial Council in a two-page order unanimously adopted a recommendation by a three-judge committee investigating Newman to extend a suspension that began in September 2023.” Read more here.
#4 Justice Jackson Discusses SCOTUS Ethics in TV Interview. From Vanity Fair: “In her first broadcast since joining the nation's highest court, Justice Ketanji Brown Jackson talks Donald Trump’s presidential immunity case, an enforceable code of ethics for her and her colleagues, and how the last two years on the bench have gone as the first ever Black woman to serve as a United States Supreme Court justice. Since joining the court, CBS Evening News anchor and managing editor Norah O'Donnell pointed out, Jackson has been a keen questioner.” Read more here. And watch the CBS interview here.
#5 Former Erin Brockovich Lawyer Convicted. From Reuters: “A Los Angeles federal jury on Tuesday found disbarred California attorney Tom Girardi guilty of four counts of wire fraud after U.S. prosecutors accused him of stealing $15 million in settlement funds from clients, prosecutors said.” Read more here.
# 6. Does Bankruptcy Judge Romance Investigation Go Too Far? From Bloomberg Law: “A Texas law firm tied up in litigation related to the clandestine relationship between its onetime partner and a prominent bankruptcy judge is pushing back against questioning from the Justice Department. Jackson Walker LLP is battling accusations from the Justice Department’s bankruptcy monitor, the US Trustee’s office, that it helped keep the romance under wraps for its own benefit. But the efforts to connect the firm with the ‘alleged secret affair’ between former partner Elizabeth Freeman and former Houston bankruptcy judge David R. Jones are flawed, Jackson Walker said in court filings Monday.” Read more here.
#7 Oregon Attorney Challenges Compulsory Bar Membership Over Bar Statements Condemning White Nationalism. From Courthouse News: “For the second time, a three-member panel of judges of the Ninth Circuit reversed a lower court’s dismissal of an Oregon attorney’s case against the Oregon State Bar after the bar published two statements he objected to in its magazine. In an opinion issued Wednesday, the Ninth Circuit panel determined attorney Daniel Crowe established a freedom of association infringement claim in his complaint protesting bar membership being a requirement to practice law in Oregon and requesting a refund of his dues after the bar published a series of statements in the April 2018 edition of the Bulletin, the state bar’s magazine. The statements condemned white nationalism and faulted former U.S. President Donald Trump for normalizing violence and promoting racism.” Read more here.
#8 SCOTUS (Lack of) Recusal Explanations Under New Code of Conduct. From Bloomberg Law: “US Supreme Court conservatives, unlike their liberal colleagues, routinely decline to explain why they recuse from cases nearly a full term after all of the justices embraced a code of conduct aimed at improving transparency. Chief Justice John Roberts and the other conservatives in the court’s majority opted out of hearing matters more than 60 times since mid-November while liberals cited the code in about 20 instances, an analysis of court data shows. Recusals mostly occurred in petitions denied review and included in public orders. Lawyers are always going to be looking for a way to increase the chance of success for their clients, creating concerns over gamesmanship, said Renee Knake Jefferson, the chair of legal ethics at the University of Houston Law Center. The response should be to create structures that are acceptable to those in both the majority and the minority, not “forgo measures that would enhance accountability, increase public trust, and ensure a fair process for litigants,” Jefferson said. Read more here.
#9 Georgia Indictment of Lawyers Stalled; Ellis Pleads Guilty in Arizona Indictment. Two headlines for #9. First, from PBS: “A year after a Georgia grand jury accused Donald Trump and others of illegally trying to overturn the 2020 presidential election in the state, the case has stalled with no chance of going to trial before the end of this year.” While Kenneth Chesebro, Jenna Ellis, and Sidney Powell already entered guilty pleas in this case, charges remain pending against Robert Cheeley, Jeff Clark, John Eastman, Rudy Giuliani, and Ray Smith III. Read more here. Second, from Forbes: “Ex-Trump attorney Jenna Ellis took a deal to cooperate with prosecutors Monday in Arizona after she was charged for her efforts to help overturn the 2020 election, as a string of lawyers are now facing consequences for their work with former President Donald Trump.” Read more here.
#10 “Michael Cohen and the Trump Lawyers Who Get Burned.” From State’s Amicus Podcast: “In this next installment of The Law According to Trump, another lawyer speaks with us about representing Donald Trump. Danya Perry is Michael Cohen’s attorney (yes, that Michael Cohen). She offers insight into why lawyers still want to represent Trump, and what the ethical implications are—personally and professionally.” Listen here.
Regulatory Reform Watch
In late July, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued ABA Formal Ethics Opinion 512 - “Generative Artificial Intelligence Tools.” Here’s the overview:
To ensure clients are protected, lawyers using generative artificial intelligence tools must fully consider their applicable ethical obligations, including their duties to provide competent legal representation, to protect client information, to communicate with clients, to supervise their employees and agents, to advance only meritorious claims and contentions, to ensure candor toward the tribunal, and to charge reasonable fees.
You can download the full Opinion here.
Recommended Reading
“Algorithmic Judicial Ethics” by Keith Swisher (Arizona). From the abstract:
Judges have a brand new bag—an algorithmic accessory in criminal adjudication. It scores criminal defendants, aiming to inform judges which defendants are likely reoffenders or flight risks and which ones are not. The downsides, however, include that the algorithms score defendants primarily on the basis of other defendants’ (mis)conduct and that certain races effectively score lower than other races. This article explores these algorithmic developments in criminal courts across the country and makes four contributions: (1) a survey and preliminary application of judicial ethics to this development; (2) a preliminary moral argument, informed by related judicial ethics and legal standards, suggesting that judges should use these algorithmic tools only to help, not hurt, individual defendants; (3) an approach to judicial decision-making in the shadow of structural injustice that promises to deal less algorithmic damage to defendants and their family members; and (4) a technical constraint on algorithmic design that ensures equal (indeed, better than equal) protection on the basis of race.
“Check All the Boxes When Practicing Election Law” by Christopher Trebilcock (Michigan Bar Journal). Here’s an excerpt:
We know the names and the associated conduct which gave rise to historic disciplinary actions, court-ordered sanctions, or both as a result of participating or appearing in one of the 62 lawsuits filed nationwide in the aftermath of the 2020 general election. Rudy Giuliani. Sidney Powell. L. Lin Wood. John Eastman. In Michigan, U.S. District Court Judge Hon. Linda Parker ordered eight attorneys licensed to practice law in the state to pay sanctions in the “Kraken” lawsuit disputing the 2020 election results.
Regardless of political affiliation, there should be little dispute that these high-profile matters distract from the significant number of election-related lawsuits and administrative challenges State Bar of Michigan members file on a regular basis. Many of those lawsuits and administrative actions have merit. However, too many lack good faith arguments, are not well-grounded in law, or are procedurally deficient and a waste of judicial resources. When courts and administrative bodies are flooded with the latter and not the former, there is an increased risk that meritorious claims are glossed over and the public loses faith in members of the bar. …
Election law litigation is not for the faint of heart. Lawyers should not merely dip their toes into the election law pool. I was fortunate — and remain blessed — to have learned the statutory and procedural rules governing election matters from some of the best practitioners in the state. What follows are a few key lessons I have learned during my 23 years of practice.
Read the full article here.
“The Inherent Powers’ of Multidistrict Litigation Courts” by Lynn Baker (Texas). From the abstract:
Mass tort multidistrict litigations (MDLs) involving thousands of claims present the judge with unique management issues. The MDL statute, in its scant two pages enacted in 1968, offers no guidance for the proper handling of these issues, and the Federal Rules of Civil Procedure speak to these issues only very generally through Rules 16 and 42. Thus, MDL judges have often invoked their “inherent powers” as authority when they take certain actions with significant implications for the parties and their attorneys. Not surprisingly, several of these actions and their underlying justifications have been controversial: (a) appointing lead attorneys; (b) ordering that these attorneys be compensated through a “common benefit” assessment on the recoveries of certain clients in the litigation; (c) reducing the total contractual fees that plaintiffs agree to pay their individually retained counsel; and (d) reviewing private settlement agreements. Professors Robert Pushaw and Charles Silver have recently offered the most thorough analysis to date of judges’ assertions of their inherent powers when managing MDLs and have concluded that the courts’ inherent powers do not properly extend to any of these four actions.
In this Article, I critically examine the arguments put forward by Pushaw and Silver. Offering my own analysis within their inherent powers framework, I agree with Pushaw and Silver’s conclusion that the inherent powers of the federal courts do not properly extend to reducing the total contractual fees that plaintiffs agree to pay their individually retained counsel or to reviewing private settlement agreements. However, I find unpersuasive their analysis regarding the appointment and compensation of MDL leadership attorneys. I conclude that MDL courts do have authority to appoint lead attorneys and to order that these attorneys be compensated through a common benefit assessment on the recoveries of certain clients in the litigation.
Legal Ethics Trivia
From the Texas Center for Legal Ethics, here’s the question of the month: “Can lawyers ethically charge a monthly subscription fee?” Test yourself at this website where you can read a short hypothetical, select an answer, and see your results. So far, only 13% have gotten it right. Will you?
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
Call for Materials on Lawyers’ Ethical Duty to Protect the Rule of Law. The American Bar Association is putting together a clearinghouse of teaching resources related to the work of the ABA Task Force for American Democracy. These include scholarship and teaching resources related to lawyers' ethical duty to protect the rule of law. If you have relevant materials you are willing to share, please send them to Doug NeJaime at douglas.nejaime@yale.edu.
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.
September 26-27 — The Role of Lawyers in Defending Democracy, Hofstra Law School. Lawyers have always played a crucial role in preserving democracy in the United States. In recent years, that role has been increasingly questioned, threatened, and manipulated. At this Fall’s Freedman Institute Symposium, leading practitioners and experts will convene to examine multiple aspects of lawyers’ responsibilities to preserve democracy. The program will include three panels, each exploring an aspect of the moral and ethical duties of lawyers when democracy is under attack, and what changes can or should be made to how the legal profession sees its obligation to defend democracy. Learn more here.
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.
Catch Up
Here’s a list with links to some of the most-read editions of the Legal Ethics Roundup.
Link Here (12.2.23) & Link Here (12.19.23)
