LER No. 63 (First Monday Edition) - NY Suspends Chesebro, an ABA for Journalists?, Mexico SCT Justices Resign, Election Ethics, Birthday Coincidence, Reforms, Rec Reads, Jobs, Events & More (11.04.24)
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 past week’s headlines plus reading recommendations, job postings, events, and many other features.
Last week was my birthday, and my husband Wallace Jefferson decided to make it extra-special by arguing a case before the Supreme Court of Texas at the University of Houston Law Center (where I’m the professor, not him!). What are the odds?!? Then again, we are kind of used to incredible odds when it comes to our birthdays — we share the same birthdays as Richard and Mildred Loving, the couple whose U.S. Supreme Court case made our marriage legal. Here’s Wallace arguing with a giant block of salt. If you want to know more about why, watch the argument here. Unlike SCOTUS, SCOTX has long allowed live-stream video of arguments and posts them on its very own YouTube channel.
Tomorrow is Election Day. Please make time to vote if you haven’t yet! 🗳️ And now let’s move on to the headlines and so much more in this First Monday edition of the LER . . .
Highlights from Last Week - Top Ten Headlines
#1 Chesebro License Suspended in NY Over Guilty Plea in GA Election Prosecution. From Politico: “Kenneth Chesebro, an architect of Donald Trump’s bid to subvert the 2020 election, has had his law license suspended in New York. A five-judge panel from a state appeals court ruled Thursday that Chesebro’s guilty plea in Georgia last year merited the indefinite punishment. In the Georgia plea, Chesebro admitted to filing false documents during Trump’s bid to overturn his loss in that state.” Read more here.
#2 Mexico Supreme Court Justices Resign Over Reforms. From the Associated Press: “Eight justices of Mexico’s Supreme Court have said they will leave the court rather than stand for election as required by a controversial judicial overhaul passed last month. Supreme Court President Norma Piña and seven others submitted letters Tuesday and Wednesday stating they would leave their posts rather than compete in judicial elections scheduled for next June.” Read more here.
#3 An American Bar Association for Journalists? From The Hill: “Public trust in the media has plummeted to historic lows, with a recent Gallup poll showing only 31 percent of Americans expressing a ‘great deal’ or ‘fair amount’ of trust in the news. … To truly address the media’s trust crisis, journalism needs an approach that goes beyond stopping endorsements and borrows from a historic model of reform: the American Bar Association. When the legal industry faced a similar breakdown in public confidence over a century ago, it established standards, credentialing, and a code of ethics. Journalism today needs its own ‘Bar Association,’ an independent organization that is empowered to establish standards, issue credentials, and hold journalists accountable. Only then can the media work to rebuild trust, repair its public image, and reclaim its essential role as the Fourth Estate in our democratic society.” Read more here. (Side note: This is an interesting argument, especially given that journalists have played an important role in enforcing codes of ethics for lawyers and judges. For more on that, see my forthcoming Cardozo Law Review article “Ethics Accountability: The Next Era for Judges and Lawyers.”)
#4 Law Firm Sanctioned $1M for End-Run Attempt to Avoid Federal Decision in State Court. From the ABA Journal: “A federal judge had inherent power to impose a $1.05 million sanction against a Maryland law firm for asking state courts to order an end to U.S. district court litigation, a federal appeals court ruled last week. The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, affirmed the sanction against Napoli Law, which was accused of breaching a contract to share attorney fees promised in a referral deal. Napoli Law had filed lawsuits in two New York state courts that sought an order for the plaintiff, the Keyes Law Firm, to dismiss the federal case.” Read more here.
#5 A Canadian Perspective on Social Media Use by Judges. From Slaw: “The Canadian Judicial Council (CJC) has issued ethical guidelines for judges on the use of social media. These guidelines could be a useful template for updating or expanding codes of ethics for tribunal members.” Read more here.
#6 A Must-Listen Podcast — Matt Preston, CFO at The Legal Accountability Project. From the Lawyers in the Making Podcast: “Matt is a University of Michigan Law School Graduate and currently works as the Chief Financial Officer at the Legal Accountability Project and as a Judicial Law Clerk at the US Court of Appeals. In this episode, Matt takes us on a gripping ride through his evolution from military veteran to law student, sharing unforgettable stories that span the battlefield and the classroom. … This conversation is packed with hard-earned wisdom, from battlefield grit to legal innovation. If there were a podcast hall of fame, this episode would be an instant inductee. Tune in for a story of resilience, reinvention, and relentless curiosity that will leave you inspired and motivated.” Listen here.
#7 “Justice Gorsuch’s Recusal May Have Doomed a Man to Death.” From Steven Lubet in The Hill. “There is considerable doubt about Richard Glossip’s guilt for a brutal 1997 murder in Oklahoma City, for which he has twice been sentenced to death. It also appears unquestionable that he has never gotten a fair trial. Glossip’s case is now before the U.S. Supreme Court, where his fate may actually be determined by the incoherence of the court’s recusal rules.” Read more here.
#8 “Good Luck Finding Legal Representation If You Support Palestine.” From Katherine Franke in The Nation: “A law firm dumped me as a client because of my support of students’ right to protest Israel’s actions. I’m far from the only one shut out.” Read more here.
#9 “The Enigma of Big Law Innovation.” From Mark Cohen in Forbes: “Large corporate law firms (a/k/a ‘Big Law’) are on a hiring spree. They are snapping up tech-oriented talent to fill a mélange of newly-formed firm C-Suite roles. The list includes: Chief Officers of Innovation, Information, Process, AI, Data, and Value. Firms are also onboarding data scientists, machine learning engineers, and other digital experts, many of whom are recruits from other sectors. The Chief Innovation Officer (CINO) role is not new, but its widespread adoption and focus on digital talent is. It's a stretch to conclude the hires evidence Big Law’s wholesale commitment to a ‘digital or die’ transformation. It’s reasonable to infer, however, that firms anticipate a reckoning for their remarkably resilient, enduring, highly profitable economic model. The real story of the new hires is whether their mandate is to transform the existing firm model or, far more narrowly, to improve its efficiency.” Read more here.
# 10 So Many Election-Related Headlines. You get four articles for #10, all touching on legal ethics and the election.
First, from the New York Times: “In the aftermath of Donald J. Trump’s defeat in 2020, one of his election lawyers set out to keep the lies about his loss alive. The lawyer, a well-connected conservative named Cleta Mitchell, knit together grass-roots activists, Republican lawyers, party officials and deep-pocketed advocacy groups into a vast national network. The aim was nothing less than remaking American elections. Over the past four years, Ms. Mitchell’s Election Integrity Network has done more than any other group to take Mr. Trump’s falsehoods about corruption in the democratic system and turn them into action. … The New York Times has obtained recordings of more than 400 of those meetings, over 400 hours of conversations, along with additional documents and training materials. It is a trove that provides an extraordinary behind-the-scenes look at how misinformation is used to manufacture a movement.” Read more here (gift link).
Second, from The Intercept: “‘One of the lessons from 2020 was that the impact of bringing all these lawsuits in terms of public trust in the election was significant,’ said legal ethics professor Scott Cummings, who has written about the MAGA legal braintrust’s efforts to keep Trump in power. ‘Most of the lawsuits then were not designed to win on the merits, but to confuse the public. These cases are of a same piece.’” Read more here.
Third, from Bloomberg Law: “Jones Day is edging its way into the legal fight to send Donald Trump back to the White House, even after the powerful Washington firm distanced itself from the former president.” Read more here.
Fourth, from Reuters: “After Donald Trump's bid to overturn his 2020 election loss, an advocacy group was launched to take on the lawyers who aided in his doomed effort, hitting them with more than 80 ethics complaints. With Trump again the Republican candidate for the U.S. presidency, his allies have fired back at this group, named the 65 Project. A pro-Trump nonprofit known as America First Legal has accused the 65 Project of engaging in a left-wing attempt to intimidate conservative lawyers, filing a bar complaint earlier this week against the 65 Project's top lawyer Michael Teter. The Oct. 28 complaint said Teter was targeting lawyers ‘based solely upon their representation of a disfavored client.’ … Teter described the 65 Project's board of advisors as bipartisan, noting that it includes former lawyers in Republican administrations. ‘Politics isn't entering into it,’ Teter said in an Oct. 31 telephone interview. ‘The abuse of our legal system is what the premise of our work is.’" Read more here.
Regulatory Reform Watch
Fix the Court Proposes Revisions to ABA Model Code of Judicial Conduct. From the Fix the Court Media Release: “Fix the Court has submitted a set of proposed revisions to the American Bar Association Standing Committee on Ethics and Professional Responsibility that urge the Committee to implement crucial updates to Rules 3.13 and 3.15 of the Model Code of Judicial Conduct. …
While 48 out of 50 states require judges to file annual disclosure reports, Fix the Court has identified significant inconsistencies in the breadth of information required. While some states’ interpretation of Rules 3.13 and 3.15 surpass recommended disclosure requirements, many other Codes of Conduct offer minimal transparency.” Read more here.
More States Consider Reforms to Allow Nonlawyer Practice. From Law.com: “More states now appear open to the possibility of permitting nonlawyer ownership of law firms, which state regulatory bodies have long prohibited as part of a broader set of rules barring the unauthorized practice of law. Indiana, Minnesota and Washington state are among the latest jurisdictions exploring the creation of pilot programs that could pave the way for alternative legal service providers to engage in work that was traditionally solely reserved for licensed attorneys.” Read more here.
Recommended Reading
“Retaining Authority in Misconduct Matters After Judicial Resignations” by Sarah Cravens (Washington & Lee). From the abstract:
Some of the most challenging problems in the field of judicial conduct are those related to the potential for abuse of judicial power and the lack of appropriate transparency. These challenges are closely linked with the perpetual difficulty in finding an appropriate balance between the twin values of judicial independence and accountability. This article (the first of a pair) will explore a peculiar problem that arises at that intersection of independence and accountability where a judge attempts to evade official discipline by resigning from the bench (whether while a misconduct complaint is pending, or a disciplinary proceeding is ongoing, or indeed before a complaint has even been filed). It explores jurisdictional and theoretical differences of approach to the authority retained or ceded in such scenarios and the reasoning and ramifications of these various approaches in several common law jurisdictions around the world. It ultimately advocates the retention of disciplinary authority, including full sanctioning power, despite a judge's resignation, and regardless of variations in other aspects of judicial selection and discipline systems.
“Moving Beyond Good Intentions” by Angela Onwuachi-Willig (Boston University). From the abstract:
This symposium article seeks to answer these questions about how law school leaders might cultivate antiracist cultures within their law schools, among their students, and across the legal profession, even in the face of a growing national backlash against antiracism, diversity, equity, and inclusion. Part I first establishes why it is important for law schools to “provide [an] education to law students on bias, cross-cultural competency, and racism,” as the American Bar Association (ABA) requires, and to train future lawyers who have the abilities to combat racism. In so doing, Part I defines key terms such as “racism” and antiracism,” detailing and explicating various forms of racism in our society. Part I also discusses the obstacles and challenges that law schools, and the legal profession generally, face in developing effective strategies and cultures to combat racism within law schools, the legal profession, and society as a whole. Part II then sets forth suggestions for policies, practices, rules, and actions that law schools and other legal institutions-such as law firms, legal organizations, government offices, and public interest organizations-can take to build an antiracist and more inclusive legal profession and culture.
“An Ethical Tribute Virtue Pays to Vice” by David McGowan (San Diego). From the abstract:
The ABA's Model Rule 8.4(g) makes lawyers who engage in discrimination based on certain categories subject to discipline. Comment five to that rule (which I call the Batson exception) states that "a trial judge's finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g)." Such findings typically require a trial judge to find that a lawyer engaged in purposeful discrimination, however, so there is a disjuncture between the rule and this aspect of comment five. Why is a judicial finding of purposeful discrimination not a basis for discipline under a rule forbidding purposeful discrimination? This paper examines the history of this comment and discusses it in the context of peremptory challenge practice following Batson v. Kentucky and the efforts of several states to replaces Batson's purposeful discrimination standard with a less demanding test. The paper argues that the exception reflects practical concerns Batson ignored in favor of a strong presumption of good faith. To the extent the Batson exception is justifiable, the rationale for Batson's purposeful discrimination standard is weakened. The paper argues that analysis of the Batson exception weighs in favor of the abolition of peremptory challenges.
And in shameless self-promotion, here’s my latest law review article: “Ethics Accountability: The Next Era for Judges and Lawyers.” From the abstract:
This article, written for the Cardozo Law Review Symposium on Ethics in the Judiciary and the Legal Profession: Are We in Crisis?, seeks to understand the limitations of past ethics reforms and suggests an agenda for the next era of ethics accountability in the judiciary and the legal profession. Part I of this article examines the indictments of lawyers involved in the 2020 election litigation and the Supreme Court’s adoption of its first-ever ethics code in 2023 as case studies to demonstrate the challenges of ethics accountability and the concerns of politicization in the enforcement of ethics codes. Part II explores sources of ethics accountability, including disciplinary bodies, courts, legislators, journalists, and nonprofit advocacy organizations. Part III concludes by reflecting on the next era of ethics accountability and offering a preliminary agenda to move beyond politicization and bolster public confidence in the legal profession and the judiciary. Recommendations include a call for more law school-based ethics institutes and centers.
Legal Ethics in Pop Culture
Matlock is Back - Starring Kathy Bates as the New “Matty” Matlock and Raising Interesting Legal Ethics Issues. From Adam Banner in the ABA Journal:
When I first came across the new Matlock offering staring Kathy Bates, I figured it would either be a reboot or a continuation of the original series, which starred Andy Griffith and ran from 1986 to 1995. However, the production team answered that question within the first few minutes of the pilot: 2024’s Matlock is kin to its predecessor only in name and genre. The meta explanation given for the series’ title is the first of many surprises in store for the audience. The series premiere aired on CBS and became available on Paramount+ on Sept. 22; it will air again Oct. 10, and new episodes will start Oct. 17.
Bates’ character, Madeline “Matty” Matlock, presents as an older attorney who hasn’t practiced in more than 30 years. She wants to reenter the legal field and uses her cunning and unassuming demeanor to sneak into a successful law firm’s partners’ meeting. …
[Matty] describes how her opening statement is the first opportunity to tell the jury her client’s story. She decides she’ll do what she can to slide in the “reasoning” behind her client not taking the stand (the main rationale is actually related to his prior criminal history). When the defense objects, she feigns surprise, despite her previous admission that, “Again, I’ll lose, but I’ll get it in the jury’s head.”
I’d never advise an attorney to conduct themselves in an unethical manner. You should address a questionable issue in limine before trial. Still, we all know there are grayer areas depending on your judge, and plenty of attorneys will ring a bell that can’t be unrung to test the waters and see how much leeway they have.
Read the full ABA Journal review here.
Legal Ethics Trivia
From the Texas Center for Legal Ethics, here’s the question of the month: “Can lawyers answer legal questions about a specific factual situation during a presentation to members of the public?” Test yourself at this website where you can read a short hypothetical, select an answer, and see your results. So far, only 27% have gotten it right. Will you?
Get Hired
Did you miss the 100+ job postings from previous Roundups? Find them all here.
Conflicts Attorney, Wilson Sonsini — Austin, Boston, Boulder, LA, NYC, Palo Alto Salt Lake, San Diego, San Francisco. The Conflicts Attorney will be responsible for assisting with the review, identification and resolution of any potential conflicts issues with respect to clients, matters, as well as new hires. The Conflicts Attorney will be actively following-up on conflicts clearance with all responsible parties handling new engagements. Learn more and apply here.
Conflicts Staff Attorney, Sidley Austin — Chicago, New York, Washington D.C. (Hybrid Optional). The Conflicts Staff Attorney will be responsible for assisting with the review, identification, and resolution of potential conflicts issues firmwide. Learn more and apply here.
Lateral Conflicts Attorney, Dentons — Remote. Review and provide thorough and timely analysis of conflicts information provided by lateral candidates. Learn more and apply here.
Legal Conflicts Manager, Vice President, Citi — Tampa (Hybrid). Review, analyze, and process legal conflict of interest waiver requests received globally from outside counsel retained by Citi. Learn more and apply here.
Risk Management and Conflicts Attorney, Fenwick West — New York, San Francisco, Seattle, Silicon Valley, Washington D.C. The Risk Management and Conflicts Attorney will work closely with both the firm’s General Counsel and Risk Management team on complex conflict matters, including lateral attorney clearances, preservation holds, claims against the firm, document review and ethical screen issues. The Risk Management and Conflicts Attorney will aid in the enforcement of firm policy and procedures related to Risk Management issues and business intake. Learn more and apply here.
Senior Ethics Advisor, Department of the Interior, Officer of the Solicitor — Washington D.C. The Senior Ethics Advisor formulates and sets legal policy and standards of practice in the Departmental Ethics Office. Learn more and apply here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous Roundups? Find them all here.
January 8, 2025. Section on Professional Responsibility Session, Association of American Law Schools Annual Meeting, San Francisco. Learn more and register here.
January 30-February 1, 2025. Association of Professional Responsibility Lawyers Mid-Year Meeting. Learn more and register here.
May 28-30, 2025. American Bar Association National Conference on Professional Responsibility, Washington DC. Learn more here.
December 2-4, 2026. International Legal Ethics Conference at the University of Houston. 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.