LER No. 59 (First Monday Edition)- SCOTUS Opens, Elrod New 5th Circuit Chief, Pro Bono Help for Helene, More Lawyers Face DC Discipline, Ethics Pop Culture, Trivia, Jobs-10!, Events & More (10.07.24)
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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Happy First Monday! On the first Monday of each month, you get a longer version of the Roundup with the headlines plus reading recommendations, job postings, events, and many other features. The first Monday in October is extra special because it is also the opening day for the U.S. Supreme Court’s 2024 Term.
In 2010, I wrote a law review article called “The Supreme Court’s Increased Attention to the Law of Lawyering: Mere Coincidence or Something More?” I described what has turned out to be the high-water mark for cases involving legal ethics issues take up by the Supreme Court in a particular term. There were seventeen — seventeen! — such cases during the 2009 Term. You can read the full article here if you want to know more about the cases from the 2009 Term. If you’re wondering what happened after 2009, I haven’t kept a perfect count. But, in the 2010 Term the Supreme Court decided eight cases involving legal ethics and opened with seven during the 2011 Term. Last term, I tracked cases here at the Roundup - see Bonus Content No. 3. We’ve not since seen numbers like in 2009, however.
But what about the Supreme Court’s docket for the upcoming term? So far we have only one. But to be fair the Court has only granted cert to a few dozen cases to date. I’ll be keeping an eye out. For now, check out Lackey v. Stinnie, which will be argued on October 8. The case, on appeal from the Fourth Circuit, tees up multiple circuit splits for resolution on the question of whether a plaintiff who receives only a preliminary injunction is a “prevailing party” and thus entitled to attorney’s fees.
Now, let’s turn to the headlines.
Highlights from Last Week - Top Ten Headlines
#1 More Lawyers Face D.C. Discipline Over 2020 Election. From Law360: “Three attorneys ‘essentially weaponized their law licenses’ to subvert the will of voters and undermine public confidence in elections when they worked on lawsuits challenging the results of the 2020 presidential contest, a lawyer with the D.C. Office of Disciplinary Counsel told an ethics committee in the nation's capital on Monday. As a disciplinary hearing opened for Julia Z. Haller, Brandon C. Johnson and Lawrence J. Joseph, the disciplinary office's Jason R. Horrell said the three lawyers had ‘no evidence of actual massive election fraud’ when they served as plaintiffs' counsel in litigation that sought to help former President Donald Trump win in states he lost to President Joe Biden. ’Their end goal was to ensure that a losing incumbent president remained in power,’ Horrell told a three-member disciplinary committee during a hearing that was livestreamed on YouTube.” Read more here.
# 2 Judge Jennifer Elrod, Chair of Judicial Conference’s Ethics Committee, Named New Chief Judge for the Fifth Circuit. From Bloomberg Law: “The Fifth Circuit is getting a new leader just weeks ahead of the presidential election that could dictate whether the New Orleans-based appeals court will keep hearing the legal fights that have elevated its national profile. Judge Jennifer Walker Elrod takes over from outgoing Chief judge Priscilla Richman on Friday. Both were appointed by George W. Bush. Elrod said she wished critics of the court wouldn’t focus so much on outcomes. ‘It’s important for people to know and to have confidence that we are using our process in the best way we can, and that we are explaining what we’re doing so that you can follow it as we make many, many decisions,’ she said. ‘It’s especially important that lawyers and others spend time to help people in our society understand what it is that judges do.’” Elrod has chaired the Judicial Conference’s committee on ethics issues for the past three years, as the topic has come under increased scrutiny. ‘She’s exerted leadership on the national level already, and I think she’s been effective at that, [Judge Cory] Wilson said. ‘So I would expect she’s going to do the same kinds of things while she’s chief here.’ Elrod said that she enjoys administrative work. ‘I like to think of things to make us able to do our jobs more efficiently and to help people,’ she said.” Read more here.
#3 “Unethical for Lawyers to Tell Clients Their Judges May Be Biased Based on Race, Sex, Etc.?” From The Volokh Conspiracy: “That appears to be the assumption behind N.Y. Advisory Committee on Judicial Ethics opinion 24-73, at least when ‘the attorney's comments are so egregious that they seriously call into question the attorney's honesty, trustworthiness, or fitness to practice law,’ whatever that might mean in this context; the opinion was released May 9 but just posted on Westlaw.” Read more here.
#4 No More Chats for Livestream Judges in Detroit. From the Detroit Free Press: “Detroit district court judges are no longer allowed to include chats if they livestream their hearings online. The new rule comes after a Free Press investigation found evidence that embattled 36th District Court Judge Kenneth King routinely engaged with viewers on a chat accompanying his YouTube livestream of court proceedings. At times, he appeared to comment during hearings or about specific matters before his court. ‘We're out of the chat business,’ Chief District Court Judge William McConico told the Free Press this week.” Read more here.
#5 Law School Dean Aided Trump “Big Lie” But Escaped Discipline (So Far). From the Intercept: “In the evening of January 6, 2021 — as the Capitol Police were doing final sweeps of ransacked buildings and senators were preparing to resume the electoral vote count — former President Donald Trump asked the White House switchboard to get Mark Martin on the phone. A retired North Carolina Supreme Court justice, Martin was a key adviser to Trump’s multi-pronged fight to overturn his loss in November 2020. In discussions with aides and administration officials, Trump considered Martin’s counsel as important as that of attorney John Eastman, who’s currently under indictment in two states and may be disbarred in a third. … As another election looms, one that is shaping up to be settled by courts, it’s crucial to examine the legal players who tried to reverse Trump’s defeat in 2020. But unlike Eastman and other Trump-aligned lawyers, Martin has largely escaped scrutiny for his contribution to the Big Lie effort, which culminated in a nine-minute call as Trump and his allies were still looking for ways to pressure former Vice President Mike Pence into handing Trump the election.” Read more here.
#6 Recommendations for SCOTUS to Improve Public Perception of Ethics. From Noah Feldman (Harvard) in Bloomberg Law: “The upshot is that an ethics code is only going to reestablish legitimacy if a skeptical public believes it is being followed. For that to happen, there would have to be some prominent examples of justices recusing themselves or taking other steps that publicly demonstrate that they are following the ethics code. As it is, justices rarely recuse and when they do, they typically don’t provide an explanation. For example, [Clarence] Thomas did recuse himself in one Jan. 6 case, involving his former law clerk, Trump attorney John Eastman, but not in others. No reasons were given for any of those decisions. The justices should, at a minimum, bend over backward to show they are in full compliance with the code — and tell the public about it. Their decisions about their conduct should be grounded in the knowledge that the public might not see their behavior the way they themselves see it. They should therefore recuse themselves even under circumstances of doubt.” Read more here.
#7 Lawyers Licensed Outside of NC Authorized to Provide Pro Bono Help After Hurricane Helene. From the Florida Bar News: “In response to this urgent need, the North Carolina Supreme Court has issued an administrative order (Katrina order) that permits attorneys licensed in other states, including Florida, to temporarily register with the North Carolina State Bar to provide pro bono legal services to those impacted by the storm. The order amends the existing rule to facilitate immediate legal assistance for low-income residents facing the aftermath of Hurricane Helene.” Read more here.
#8 “Congress To Federal Judges: You Are Not Above The Law.” From the Aliza Shatzman (Legal Accountability Project) in Above the Law: “Thanks to sustained advocacy and public consciousness-raising, last week, with little fanfare, Congress reintroduced the Judiciary Accountability Act (JAA) (House/Senate), legislation that will extend federal anti-discrimination protections to more than 30,000 federal judiciary employees, including law clerks and federal public defenders. Importantly, Article I federal courts — including the D.C. courts, where I clerked — are included, thereby ensuring those who clerk in courts created by Congress, for judges who are confirmed by the Senate for terms of 15 years or less, also enjoy basic workplace protections.” Read more here.
#9 NYC Bar Association Calls for Enforceable SCOTUS Ethics Code. From Law360: “The New York City Bar Association called on Congress to put U.S. Supreme Court justices under enforceable ethics rules in a report released Tuesday, throwing its support behind reforms, such as the creation of a Judicial Investigation Panel and an Office of the Inspector General.” Read more here.
#10 SCOTUS May Take Up Recusal Case. From the New Republic: “The Supreme Court is starting its latest term under one of the darkest clouds of its history, with polls showing public confidence in the court near historic lows. … But now, a case has arrived at the high court that asks the justices to decide whether a federal judge—or a justice—must recuse from a case whenever the judge’s impartiality is reasonably in doubt. The justices will meet next Monday to discuss whether to take the case. If they do, they will have a chance to lay down a clear rule about when the appearance of a conflict of interest is enough to require recusal. If they don’t take the case, that decision may speak just as clearly about the court’s views on judicial ethics. A group of legal ethics experts has warned the Supreme Court that letting the lower court’s decision stand ‘would lead the public to believe that judges can decide cases even if, objectively, their appearance of impartiality could be questioned. The message this decision sends would greatly harm the public perception of the fairness of the judiciary,’ these experts said in a friend of the court brief.” Read more here. [Full disclosure — I’m part of the group of legal ethics excerpts who filed the brief, which you can download here.)
Regulatory Reform Watch
SCOTX Seeks Comments on Proposed Reforms Allowing Licensed Legal Paraprofessionals and Court-Access Assistants. The Supreme Court of Texas is seeking public comment on its preliminary approval of rules governing licensed legal paraprofessionals and licensed court-access assistants to provide certain limited legal services to low-income individuals. Comments are due November 1. Read more here.
Washington State Bar Association — Pilot of Entity Regulation. “On July 17, 2024, the Practice of Law Board approved an initial draft order for implementing a pilot test of entity regulation. Following a comment period, on September 18, 2024, the Practice of Law Board approved a revised draft order to implement a pilot test for submission to the Washington Supreme Court. A clean version of the revised order was submitted to the Court as a Proposed Order for Pilot Project to Test Entity Regulation on September 27, 2024.” Read more here.
IAALS Regulatory Innovation Recommendations. The Institute for the Advancement of the American Legal System has issued a new report, Unlocking Legal Regulation: Lessons Learned and Recommendations for the Future. The report lays out a set of twelve recommendations including which stakeholders to engage, program structure and requirements, messaging, research and data, and other ideas.
Recommended Reading
“The Weaponization of Attorney’s Fees in an Age of Constitutional Warfare” by Rebecca Aviel (Denver) and Wiley Kersh (Denver). From the abstract:
If you simply want to win battles in the culture war, you enact legislation that regulates firearms, prohibits abortions, restricts discussion of critical race theory, or advances whatever other substantive policy preferences represent a victory for your side. But to win the war decisively with an incapacitating strike, you make it as difficult as possible for your adversaries to challenge those laws in court. … This Article reveals that the largely unnoticed attorney fee scheme woven through [Texas] SB 8 [the Fetal Heartbeat Law], imposing one-sided fee shifting with liability for the attorneys of disfavored litigants, is unprecedented and deeply threatening to whatever is left in our legal culture of notions of fair play, access to courts, and legitimate contestation of bitterly disputed issues. Accepting its proliferation will result in a profound aggrandizement of state power that is inconsistent with federalism and separation of powers principles as well as due process and First Amendment rights.
“The Profit Principle: Tracing the Moral Decline of Corporate Law Firms, a review of Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice” by Sung Hui Kim (UCLA). (LER readers may recall that this book was on our list for summer recommended reading. If you haven’t picked it up yet, this review will inspire you to do so!) From the introduction:
On the morning of September 21, 2022, I received an email from a senior administrator of the UCLA School of Law. The email invited me to participate in a closed-door, face-to-face meeting with the partner in charge of the U.S. offices of Jones Day, Kevyn Orr; another partner in the firm’s Los Angeles office who had spoken at the law school’s convocation just a few weeks earlier; and two first-year law students who had spear-headed a petition signed by more than a hundred students. I was asked to join because I teach professional responsibility and write about legal ethics. With a little digging, I obtained a copy of the students’ letter and read it with intrigue. … As this convocation controversy was unfolding, David Enrich’s new book about Jones Day, Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice, was published, prompting a vociferous rebuttal from Kevyn Orr, the head of the firm’s U.S. offices, who had been invited to meet with the student petitioners. Servants of the Damned exposes the little-known role played by the largest and most powerful global law firms—often dubbed “BigLaw”—in advancing the causes of their well-resourced but not always well-behaved clients. Enrich explores this subject largely, though not exclusively, through the lens of a single law firm: Jones Day. … In this Review, I identify some of the key insights that Servants of the Damned offers about Jones Day specifically and BigLaw generally, and I evaluate Enrich’s claims about the causes of the moral transformation of large law firms.
“Think, Reflect, Refine: Shaping the Modern Lawyer” by Camesha Little (Detroit Mercy). From the abstract:
Legal education must undergo a substantive transformation to adequately equip future lawyers for an increasingly complex, technology-driven legal landscape. This article critically examines the limitations of current pedagogical practices, particularly the persistent reliance on traditional methodologies such as the case method, which can engender a hostile and exclusionary learning environment—especially for students from historically underrepresented identities. It contends that the prevailing focus on doctrinal instruction often comes at the expense of cultivating essential humanistic competencies, including emotional intelligence and self-awareness. These attributes are indispensable for promoting professional well-being, sound judgment, and the development of a robust professional identity. The article advocates for the integration of reflective thinking and writing as pedagogical strategies to assist law students in navigating complex emotional landscapes, enhancing critical reasoning skills, and fostering professional growth. Embedding these reflective practices within doctrinal courses is imperative to creating a more inclusive, empathetic, and supportive academic environment, thus preparing students to emerge as competent, emotionally intelligent legal professionals capable of thriving in the modern era.
“Evidence Based Innovation: Criteria for Evaluating Lay Legal Assistance Programs,” JOTWELL by Elizabeth Chambliss (South Carolina) reviewing Tanina Rostain & James Teufel, Measures of Justice: Researching and Evaluating Lay Legal Assistance Programs, 51 Fordham Urb. L.J. __ (forthcoming, 2024), available at SSRN (July 25, 2024) and Matthew Burnett & Rebecca L. Sandefur, A People-Centered Approach to Designing and Evaluating Community Justice Worker Programs in the United States, 51 Fordham Urb. L.J. __ (forthcoming, 2024), available at SSRN (September 3, 2024). From the introduction:
It is an exciting time for access to justice and access to justice research. Jurisdictions around the country are experimenting with new models for expanding access to legal assistance by training nonlawyer advocates and advisors to provide limited legal services in areas of high unmet need. Such models range from for-profit programs for specially trained paralegals to not-for-profit community-based programs using a variety of staffing models. Research on such programs is growing and becoming more organized, rigorous, and impactful. Finally, after decades of resistance to new categories of providers, regulators are beginning to pay attention to evidence about the limits of the lawyer-only model and possible benefits of expansion. The question now is, how are these programs working? And what should be the criteria for assessment? How might we move beyond case-by-case, after-the-fact program assessment based on the number of intakes and outcomes and incidents of demonstrable harm, toward a more robust, comparative framework for research? Two new articles tackle these questions by proposing specific evaluative criteria, measurement strategies, and sources of data to guide researchers and policymakers in program evaluation and design.
Legal Ethics in Pop Culture
Scott Turow’s Presumed Innocent has been reprised as a new series on Apple TV starring Jake Gyllenhaal. The book was published in 1987 and produced as a moving starring Harrison Ford in 1990. The plot focuses on a prosecutor named Rusty Sabich who becomes a suspect in the murder of his colleague Carolyn Polhemus. If you watch the new series, you might couple it with Christine Crocus’s 2003 law review article examining prosecutorial ethics in Presumed Innocent and beyond, Prosecutors, Prejudices and Justice: Observations on Presuming Innocence in Popular Culture and Law. Reviews from the New York Times (gift link) and NPR both take this latest version to task for not fully moving on from the “sexism baked into the show and the movie” that endures from “the gender politics of the 1990.” Even with mixed reviews, it has already been renewed for a second season, and I’m sure we can expect more ethics issues to unfold.
Legal Ethics Trivia
From the Texas Center for Legal Ethics, here’s the question of the month: “What are a lawyer’s confidentiality obligations when it comes to a deceased client?” Test yourself at this website where you can read a short hypothetical, select an answer, and see your results. So far, only 25% have gotten it right. Will you?
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Attorney Learning and Development Strategist, Morrison Foerster — San Francisco, Palo Alto, Los Angeles, San Diego, Denver, Austin, Boston, New York or Washington, D.C. Create and implement plans and strategies to promote successful attorney onboarding, integration, talent development, engagement, and morale; act as a resource to attorneys in assigned region and promote understanding of firm expectations, procedures, resources, and culture; and work with local leadership to promote attorney engagement and morale, among other responsibilities. Learn more and apply here.
Conflicts Attorney, Haynes & Boone — Denver/Remote. Responsibilities include Analyzing conflicts of interest issues independently relating to new firm business, lateral attorneys, new staff, and potential merger candidates; drafting conflict waivers and ethical walls as needed to resolve potential conflicts of interest; and advising attorneys regarding ethical obligations relating to conflicts of interest and other issues covered by the Rules of Professional Conduct. Learn more and apply here.
Conflicts Attorney, Perkins Coie — Seattle, Portland, Phoenix, Madison, Denver, Dallas, Austin, Chicago, or Washington DC. The Conflicts Attorney will independently review, research, and resolve conflicts issues related to firm new business and staff personnel and ensure compliance with ethical standards in all jurisdictions as well as firm policies. Learn more and apply here.
Conflicts Resolution Attorney, Morrison Foerster — San Francisco. This role resolves conflicts reports and addresses related conflicts of interest issues. The conflicts resolution attorney performs in-depth research, makes recommendations for resolution, drafts related waivers, and documents clearance, and will also supervise conflicts staff. Learn more and apply here.
Director, Lyndon B. Johnson Presidential Library and Museum — Austin. Ok, not exactly a “legal ethics” job but it is a terrific opportunity! I’ve spent a lot of time researching in the LBJ presidential archives, and Austin is a wonderful place to live. The Library Director plans, directs, and administers all programs and activities of the Library and Museum, including archival, exhibit, public and educational programs. Learn more and apply here.
Manager of Attorney Development, Haynes & Boone — Dallas. Develop and manage firm-wide in-house legal training programs and presentations; work with partners in each practice area to develop strategic plans for training, curriculum development and sequencing, including all training for entry-level associates, as well as onboarding and training programs for lateral hires; oversee attorney state bar licensure to ensure all attorneys are in compliance with firm policies, including providing training and support of first year associates’ bar exam preparation; and additional responsibilities. Learn more and apply here.
OCG Counsel - Conflicts, Latham & Watkins — Los Angeles, New York, Washington DC, Chicago, Hybrid. The OGC Counsel – Conflicts is an integral part of Latham’s Conflicts team. This role will be responsible for resolving professional ethics conflicts and other ethics and compliance issues relating to lateral clearances, new business matters, and outside counsel guidelines across the firm’s offices, while applying knowledge of legal ethics and professional responsibility rules relating to lateral attorney and new matter conflicts of interest, as well as relevant Latham procedures, policies, and practices, to advise Ethics Committee Members and other attorneys and key stakeholders. Learn more and apply here.
Professional Responsibility Attorney, Honigman — Michigan or Chicago. The Professional Responsibility Attorney will support Honigman’s Ethics Committee, which is responsible for ensuring that the firm maintains its adherence to upholding the highest ethical and professional standards. In coordination with the firm’s General Counsel and Director of Ethics, the Professional Responsibility Attorney is responsible for determining whether proposed new hires and proposed new engagements involve potential conflicts of interest or raise other ethics issues, and resolving potential ethics and business conflict issues. Learn more and apply here.
Senior Counsel - Ethics Officer, Citi — Irving, TX or Tampa, FL. This position will be 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.
Tenure-Stream Law Professor, University of Connecticut Law School. The University of Connecticut School of Law invites applications from entry-level and lateral candidates for one full-time, tenure-track, or tenured-at-hire faculty position commencing in the fall of 2025 to teach professional responsibility. Learn more and apply 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.
October 14, 2024. When and Why Might We ‘Cancel’ Lawyers? University College London Faculty of Laws - in-person and virtual. In his new book, Canceling Lawyers, Brad Wendel (Cornell) draws on a series of case studies to argue that there is genuine value in a system of formal law that aims at settling social disagreement, but that is not the whole story. Public criticism of lawyers may reflect the sense that the legal system has fallen short of ideals of fairness and inclusiveness. Accepting a certain amount of public criticism is necessary to avoid a dangerous isolation of the legal profession from accountability to the broader political community, or from the humanity of lawyers being submerged by their professional role. This ‘In Conversation’ event will see Brad discuss a number of the ideas and arguments in his book with Julie Norris (Kingsley Napley) and Steven Vaughan (University College London). Learn more and register here.
October 23, 2024. World Justice Project Rule of Law Index 2024 Launch. Learn more here.
October 23-25, 2024. ABA Forum on Access to Justice for All, Rancho Mirage, CA and virtual. This Forum is the only program of its kind to provide educational training, unique networking opportunities, and support to the access to justice commissions, IOLTA programs, and lawyer referral programs that serve as gateways to the provision of access to justice. Learn more here.
January 8, 2025. Section on Professional Responsibility, Association of American Law Schools Annual Meeting, San Francisco. Learn more here.
May 28-30, 2025. American Bar Association National Conference on Professional Responsibility, Washington DC. Learn more here.
Keep in Touch
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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)
