LER No. 64 - Lawyer Defends Cocaine Use, Cameras Banned in Fed Criminal Trials, CO Reforms Judicial Discipline, Election-Related Ethics, DOJ Sues MS Over Lawyer Pay Discrimination & More (11.11.24)
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 Lawyers, Election Results, and Ethics. For those with election fatigue, you may wish to skip Headline #1 - you get four articles:
First, from Politico: “A prominent Washington lawyer involved in President-elect Donald Trump’s planning for the Justice Department is defending Trump’s right to dictate who gets investigated and perhaps even who gets charged by the law enforcement agency. Mark Paoletta, who served as legal counsel to Vice President Mike Pence and later to the Office of Management and Budget in the first Trump administration, argued Thursday there’s no legal requirement for any president to stay out of Justice Department decisions.” Read more here.
Second, from the Washington Post: “An influential conservative lawyer who advised Donald Trump during his first term forcefully pushed back Friday on talk that one or more conservative Supreme Court justices might retire after Trump again takes office in January. Leonard Leo, who helped the president-elect select three Supreme Court picks during his first term, said in a statement that discussions of Justices Clarence Thomas, 76, or Samuel A. Alito Jr., 74, stepping down are unseemly.” Read more here (gift link).
Third, from CNN: “President-elect Donald Trump could be in a position to select the government’s top ethics czar when he assumes office in January – after a key ally in the Senate blocked President Joe Biden’s pick to head the Office of Government Ethics.” Read more here.
Fourth, while it turned out to be unnecessary given the election outcome, from U.S. News: “A coalition of current and former bar association presidents published a letter Monday night reminding their fellow attorneys and the public that ‘the courtroom is not a theater for unsubstantiated claims.’ The move comes as the Republican National Committee and allies of former President Donald Trump have filed a swath of lawsuits intending to sow doubt in the 2024 election before the results have been tallied. The letter, organized by the American Bar Association’s Task Force for American Democracy, has 125 signatories as of publication, including former presidents of the national association.” Read more here.
#2 Colorado Constitutional Amendment Reforms Judicial Discipline Process. From the Colorado Sun: “Colorado voters Tuesday approved sweeping changes to the state’s process for disciplining judges, creating an independent board to investigate complaints and enforce the state’s judicial ethics code. The constitutional change takes the judicial discipline process largely out of the hands of the state Supreme Court, which has long served as the final arbiter of whether state judges should face sanctions for misconduct. Critics say this has effectively put judges in charge of policing their own profession, enabling a toxic workplace culture to take root with little accountability. The measure also makes disciplinary proceedings against judges public when formal charges are filed. Such hearings have long been kept secret unless a state commission makes a formal recommendation for sanctions.” Read more here.
#3 SCOTX Delays Reforms on Nonlawyer Services. From Law360: “The Texas Supreme Court has delayed the effective date of rules for allowing non-attorneys to perform some legal services, saying it will take the extra time to ‘give due consideration to the comments received.’” Read more here.
#4 The Ethics of Zealous Representation. From the Law Gazette (UK): “Are solicitors at risk of behaving like zealots? That is the question raised last week by two leading academics specialising in professional ethics. One is Stephen Mayson, honorary professor of law at UCL, who has recently updated his influential review of legal services regulation. The other is Richard Moorhead, professor of law and professional ethics at the University of Exeter, who raised the issue in the first of his Hamlyn lectures. Lawyers must act in the public interest. They must also act in the interests of their clients.” Read more here.
#5 DOJ Sues Mississippi Senate Over Staff Attorney’s Pay Discrimination. From the Associated Press: “The Mississippi Senate discriminated against a Black attorney by paying her about half of what her white colleagues were paid for doing the same job, the U.S. Justice Department says in a lawsuit it filed Friday.” Read more here.
#6 “The Future of the Legal Profession Impacts Democracy.” Hosts Jackie Gardina and Mitch Winick from the SideBar Podcast sit down with Ray Brescia, author of the book Lawyer Nation, to discuss the role of lawyers in preserving democracy. Listen here.
#7 “New Rule Of Law Data Underscores Urgency Of Educating Next Gen Lawyers For Democracy.” From William Hubbard (South Carolina) at the TaxProf Blog: “In June, 104 law deans, convened under the auspices of the ABA Task Force on American Democracy, signed a joint letter committing to training the next generation of lawyers to protect our democracy and uphold the rule of law. That this is an urgent project is underscored by new data, published last week by the World Justice Project, the board of which I chair. As I have shared with this audience in the past, WJP has been tracking a global rule of law recession since 2016. For seven years in a row, the WJP Rule of Law Index has registered declining scores in a majority of countries worldwide. This year saw Index scores slide in 57% of countries, including the United States, which has in recent years suffered particularly steep declines in critical checks and balances, and now ranks a disappointing 26th out of 142 countries included in the study. The data provide a powerful evidence base for the law deans’ call to action.” Read the full op-ed here.
#8 “Kansas Attorney Disciplinary Case Touches on Baseball, Murder, Religion — and Ethics.” From the Kansas Reflector: “Three members of the Kansas Supreme Court claimed in a Friday dissent that the majority’s decision to punish an attorney for taking an aggressive approach in a client’s divorce and child-custody case could discourage vigorous advocacy central to administration of justice. Justice Caleb Stegall, who wrote the dissent joined by Justices Melissa Standridge and K.J. Wall, asserted the attorney misconduct case laid bare a pattern in which investigators erred by twisting the state’s ethics code into a tool for enforcing civility. The dissenting justices said the case illustrated the ‘chilling effect on what may be explosive or uncomfortable allegations made on behalf of unpopular people or causes.’” Read more here.
#9 Lawyer Suspended After Arguing Cocaine Use Enhanced His Work. From the ABA Journal: “A former public defender accused of representing a client at a November 2022 preliminary hearing while under the influence of cocaine has received a suspension of a year and a day. … The Pennsylvania Supreme Court suspended Erie, Pennsylvania, lawyer Nathaniel Edmond Strasser in a Nov. 6 order, the Erie Times-News reports. While representing himself in the disciplinary case, Strasser focused on the idea that cocaine enhanced his performance as an attorney, according to the Pennsylvania Supreme Court’s disciplinary board.” Read more here.
#10 No Cameras in Federal Criminal Trials. From Bloomberg Law: “A judiciary panel voted against allowing broadcasting of certain high-profile federal criminal trials, rebuffing earlier requests by news organizations to revise the ban for President-elect Donald Trump’s criminal trial. The Judicial Conference’s Advisory Committee on Criminal Rules voted nearly unanimously on Wednesday to adopt a recommendation against changing the federal rule, known as Rule 53, that prohibits photography and broadcasting in the courtroom during criminal trials. Still, the effort to change the judiciary rules before Trump stood trial is moot. The judiciary already signaled rule changes take several years, past any trial date. After, Trump’s victory in the 2024 presidential election, the special counsel overseeing his prosecutions is working to unwind them under the Justice Department’s policy against prosecuting sitting presidents.” Read more here.
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