LER No. 57 - New Ads Warn Swing State Lawyers, Conflict Delays Markel Murder Trial, SCOTUS Leaks & Ethics Code Enforcement, CA/NV Reject New Bar Exam, Sex Harassment in Judiciary & More (09.23.24)
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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Highlights from Last Week - Top Ten Headlines
#1 Ads in Swing States Warn Lawyers About Losing License in Election Challenges. From the New York Times: “After the 2020 election, legal watchdogs, outraged at some of their colleagues, filed scores of ethics complaints against lawyers who used their skills in questionable ways to help former President Donald J. Trump stay in power. And in the past few years, the groups have had some notable successes, securing judgments that have led to pro-Trump lawyers like John Eastman and Rudolph W. Giuliani having their law licenses deactivated. Now, one of these groups — the 65 Project — is taking a more proactive approach. Starting on Thursday, the group’s organizers are planning to run advertisements in legal journals published in swing states, reminding lawyers that they are ethically barred from bringing false claims on behalf of any client.” Read more here (gift link). And listen to Rachel Maddow’s coverage of the 65 Project’s work here (last five minutes of the podcast).
#2 The Ethics of SCOTUS Leaks and the Role of Chief Justice John Roberts in January 6 Cases. From the New York Times: “In a momentous trio of Jan. 6-related cases last term, the court found itself more entangled in presidential politics than at any time since the 2000 election, even as it was contending with its own controversies related to that day. The chief justice responded by deploying his authority to steer rulings that benefited Mr. Trump, according to a New York Times examination that uncovered extensive new information about the court’s decision making. This account draws on details from the justices’ private memos, documentation of the proceedings and interviews with court insiders, both conservative and liberal, who spoke on the condition of anonymity because deliberations are supposed to be kept secret.” Read more here (gift link). And listen to Dahlia Lithwick discuss the leaks with Linda Greenhouse on Amicus here.
#3 Attorney Conflict Delays Trial in Markel Murder. From the Tallahassee Democrat: “Donna Adelson’s trial on charges she helped mastermind the demise of her former son-in-law, Dan Markel, imploded in part from assumptions all sides were making about her attorney Dan Rashbaum’s attempts to deal with conflicts stemming from his decision to represent her even after handling her son’s case. That’s what legal observers said after Rashbaum — in a stunning turn of events — withdrew as Donna Adelson’s lawyer on Tuesday, the first day of jury selection in her murder trial. The move prompted Leon Circuit Judge Stephen Everett, who had cautioned Adelson multiple times about potential conflicts involving using the same lawyer who represented her son, Charlie Adelson, to declare a continuance.” Read more here.
#4 Federal Investigation of Thomas Gifts Continues; Enforceable SCOTUS Ethics Code — Champions and Critics. Three headlines for #4. First, from Law360: “The federal judiciary's governing body has spent more than a year reviewing complaints alleging U.S. Supreme Court Justice Clarence Thomas unlawfully failed to disclose decades of luxury gifts and travel. Ethics watchdogs argue it's time to wrap up the investigation, but politics — in every sense of the word — may cause further delay.” Read more here. Second, from Bloomberg Law: “The Supreme Court’s recently adopted ethics code for the justices still falls short, Senate Judiciary Chairman Richard J. Durbin told the judiciary at its twice-annual meeting Tuesday, a source familiar said. The justices have come under increased scrutiny in recent years following news reports that justices accepted undisclosed gifts from donors. The high court adopted a code of ethics for itself last year that lacks an enforcement mechanism, leading to continued calls to beef up guidance. Justice Elena Kagan endorsed the idea at an appeals court conference in July, and Justice Ketanji Brown Jackson said she would be open to enforcing the code in an interview earlier this month.” Third, an op-ed from James Burnham in City Journal: “Wielding ‘ethics’ violations against one’s political foes is a Washington tradition. When it comes to ethics and the Supreme Court, observers should not be deceived. Current attacks on the justices’ ethics are bad-faith political barbs intended to undermine the Court—not expressions of genuine concern over actual transgressions.” Read more here.
#5 SCOTUS Books and Ethics — the “Sotomayor Rule.” From Steven Lubet, an op-ed in The Hill: “Breaking ranks with most of her colleagues, Justice Ketanji Brown Jackson recently came out in favor of an enforceable code of conduct for the U.S. Supreme Court, to replace the unenforceable code issued by the court late last year [while discussing her new book]. … Jackson is not the only justice to have written a book. Justices Sonia Sotomayor and Clarence Thomas published best-selling memoirs in past years. Justice Neil Gorsuch recently released a book about what he considers the overreach of the administrative state. Justices Amy Coney Barrett and Brett Kavanaugh currently have manuscripts under contract with major publishers. The justices’ reasons for writing are no doubt sincere, but they also have a powerful financial incentive. Federal law places a strict limit on their outside income, but it does not apply to royalties. … In July 2023, the Associated Press reported that Sotomayor’s ‘tax-funded court staff’ had been pushing book sales at her speaking engagements. … That would have been flatly unethical for lower court judges, whose ‘pretty standard’ code of conduct, in effect since 1973, prohibits judges from using court staff or resources for commercial or income-earning activities, including book sales. At the time, however, the Supreme Court had no code, and thus no rule preventing Sotomayor from profiting from her staff’s efforts. When the Supreme Court issued its code of conduct, just a few months after the Associated Press expose, it included an entirely novel provision in Canon 4A, that is found in no other court’s code. The ‘Sotomayor Rule,’ as it might be called, states that ‘a justice may attend and speak at an event where the justice’s books are available for purchase.’” Read more here.
#6 Misconduct Complaint Over Clerkship Hiring Ban Dismissed. From Reuters: “A federal judicial panel has rejected a misconduct complaint against two of the 13 judges who in May signed a letter announcing they would boycott hiring law clerks from Columbia University in response to its handling of pro-Palestinian student demonstrations on its campus over Israel's war in Gaza. The 11th Circuit Judicial Council in an Aug. 12 order released late last week upheld a decision by Chief U.S. Circuit Judge William Pryor to dismiss a misconduct complaint against an appeals court judge and a district court judge. While not identified by name, the only two judges serving in the 11th Circuit's jurisdiction who signed the letter were U.S. Circuit Judge Elizabeth Branch and U.S. District Judge Tilman Self in Macon, Georgia.” Read more here.
#7 NYC Mayor’s Lawyer Resigns “Abruptly.” From NPR: “The top legal adviser to New York City Mayor Eric Adams resigned abruptly over the weekend, the latest sign of instability in the Democrat's administration as it deals with multiple federal investigations. City Hall announced Lisa Zornberg's departure late Saturday night. She had advised Adams and other city officials on legal strategy for over a year and often parried legal questions from the press on his behalf.” Read more here.
#8 Nevada, Like California, Rejects New National Bar Exam. From Bloomberg Law: “Nevada, following a similar move by California, will not use the new national bar exam set to debut in 2026 for lawyer licensing. The state’s Supreme Court has agreed to proceed with an alternative licensing process that includes traditional bar exam test components as well as a supervised practice requirement.” Read more here.
#9 DOJ’s Office of Professional Responsibility Investigates Alaska AG’s Office. From Bloomberg Law: “The Justice Department has opened an internal investigation stemming from conduct at the Alaska US attorney’s office after a federal judge resigned over his inappropriate relations with the office’s prosecutors, according to the state’s senior US senator. In a post on X on Tuesday, Sen. Lisa Murkowski (R) said she is ‘aware that there is an ongoing investigation at the Office of Professional Responsibility at the Department of Justice related to the U.S. Attorney’s Office in Anchorage that I hope moves forward quickly, and I look forward to seeing its results.’ … Although the professional responsibility office, which reviews allegations of attorney misconduct, isn’t obligated to examine the complaint, law enforcement insiders told Bloomberg Law they expected the matter to prompt an inquiry of the prosecutors’ conduct, which would include how US Attorney Lane Tucker responded upon receiving an employee’s report of sexual abuse from then-District Court Judge Joshua Kindred.” Read more here.
#10 The Federal Judiciary and Workplace Harassment. From Hank Johnson, U.S. congressman representing Georgia's fourth district and Aliza Shatzman, president and founder of the Legal Accountability Project, an op-ed in MSNBC: “It was a very bad summer for the federal judiciary. First, Judge Joshua Kindred of Alaska resigned from the federal bench in scandal after a 20-month investigation uncovered appalling abuse and sexual harassment in his chambers, leading to a referral from the Judicial Conference for possible impeachment in the House of Representatives. Then, back-to-back reports were released — one from the Federal Judicial Center and National Academy of Public Administration, the other from the U.S. Government Accountability Office — underscoring issues that judicial accountability advocates have been raising for years: The federal judiciary’s insistence on insular ‘self-policing’ and internal dispute resolution mechanisms have led to a lack of accountability for judges who mistreat employees. Furthermore, a federal public defender attempted to sue the federal judiciary for allegedly mishandling her sexual harassment complaint, further underscoring the ineffectiveness of self-policing by the third branch.” Read more here.
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