LER No. 70 (First Monday Edition) - Headlines, Ethics Reforms, Recommended Reading, Events, Jobs & More (01.06.25)
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 recent headlines plus reading recommendations, job postings, events, and other features.
I’m writing you from the Dominican Republic during a family getaway. I hope you’ve found time for rest and connecting with loved ones over the holiday season. I will soon have an empty nest with all of our kids out of high school next year, so I’m savoring every moment of this fleeting phase in the adventures of parenting. (In the words of the brilliant Mary Louise Kelly: “It. Goes. So. Fast.”)
This week I’ll be in San Francisco to attend the Association of American Law Schools Annual Meeting. If you’re in town, I hope we connect in person. Revisit LER Bonus Content No. 18 for my conference recommendations plus a few SF favorites you might want to check out.
And now, let’s dive into the headlines plus all of the other juicy legal ethics content delivered on the first Monday of the month!
Highlights From Over the Holidays - Top Ten Headlines
#1 “The Ethics Complaint Against Liz Cheney: Blue Smoke Without Fire.” From David Luban (Georgetown) in Just Security: “A recently released House of Representatives Subcommittee on Oversight report accuses former Wyoming Representative Liz Cheney of unethical conduct and concludes that ‘the Federal Bureau of Investigation must also investigate Representative Cheney.’ … The allegation is that Cheney violated the ‘anti-contact rule’ of legal ethics, by communicating with Cassidy Hutchinson without going through her lawyer. And, because of that supposed violation, the Subcommittee urges the FBI to investigate Cheney for the crime of witness tampering (p. 117). Whatever trouble Cheney may be in, it is not the legal ethics violation that the House report focuses upon. That accusation is based on a selective quotation of the anti-contact rule, leaving out the very words that prove that it does not apply. The effect is to create a public show that may well serve political purposes, but should be a complete nonstarter under any bona fide legal review.” Read more here.
#2 Judge Ponsor Apologies for Criticism of Justice Alito, but No Apologies from Justice Alito. Three headlines for #2. First, from Bloomberg Law: “A federal judge committed judicial misconduct in criticizing Justice Samuel Alito’s flying of flags outside his home that were also carried by Donald Trump supporters during the Jan. 6, 2021 riots at the Capitol, according to a recent order. Senior US District Judge Michael Ponsor of Massachusetts issued an apology after US Court of Appeals for the Fourth Circuit Chief Judge Albert Diaz found that the senior judge’s criticism, published in the New York Times, hurt public confidence in the courts as it took issue with Alito’s ethics. The Article III Project, a conservative legal group that filed the complaint against Ponsor, shared a copy of the Dec. 10 order. The Wall Street Journal first reported on the misconduct finding. Diaz wrote that while judges are permitted to write about legal issues, Ponsor’s essay ‘expressed personal opinions on controversial public issues and criticized the ethics of a sitting Supreme Court justice.’” Read more here. Second, from Steven Lubet (Northwestern) in The Hill: “Everyone makes mistakes, including judges. Sometimes they acknowledge it. Mostly, they don’t. A commendable example of the former is senior U.S. District Judge Michael Ponsor, who published an opinion essay in the New York Times in May criticizing Supreme Court Justice Samuel Alito’s involvement in what is sometimes called ‘Flag-gate.’ Although Ponsor’s criticism was entirely sensible, he subsequently apologized for going beyond the ‘proper boundaries’ for commentary by a sitting judge. Alito himself has not been so forthcoming, at least in part due to the absence of a formal process for reviewing the ethics of a justice’s conduct.” Read more here. Third, from Balls and Strikes: “Court Order: It Is Unethical for Judges to Talk about Justice Sam Alito’s Unethical Behavior.” Read more here.
#3 Senate Democrats Issue Report: “An Investigation of the Ethics Challenge at the Supreme Court.” From Politico: “Senate Democrats wrapped up their extensive investigation of Supreme Court justices’ ethics practices Saturday, issuing a report blasting two conservative justices for accepting expensive gifts from wealthy benefactors and slamming Chief Justice John Roberts for a lackadaisical response to ethical lapses by his colleagues. ‘Now more than ever before, as a result of information gathered by subpoenas, we know the extent to which the Supreme Court is mired in an ethical crisis of its own making,’ outgoing Senate Judiciary Chair Dick Durbin said in a statement. ‘Whether failing to disclose lavish gifts or failing to recuse from cases with apparent conflicts of interest, it’s clear that the justices are losing the trust of the American people at the hands of a gaggle of fawning billionaires.’” Read more here.
#4 Will the House Committee Allegations Against Matt Gaetz Impact His Law License? From the Washington Post: “Former congressman Matt Gaetz (R-Florida) regularly paid for sex, possessed illegal drugs and paid a 17-year-old girl for sex in 2017, according to a 42-page report released by the House Ethics Committee on Monday on President-elect Donald Trump’s former pick for attorney general.” Read more here.
#5 “NC Legal Advice Law Challenge Meets Early Demise.” From Law360: “A lawsuit by two paralegals and a nonprofit challenging North Carolina’s ban on the unauthorized practice of law restricting who can offer legal advice has been cut short after a federal judge found the statute falls within a substantial state interest to protect its citizens.” Read more here.
#6 Fani Willis Disqualified Over Romance Conflict. From the Washington Post: “A Georgia appellate court overturned a judge’s ruling allowing Fulton County District Attorney Fani T. Willis (D) to remain in charge of the criminal racketeering case against Donald Trump and several allies charged with conspiring to overturn Trump’s 2020 election loss in the state — a decision that could doom the high-profile prosecution. In a 31-page written opinion published Thursday, the Georgia Court of Appeals sided with Trump and eight co-defendants who sought to overturn a March order by Fulton County Superior Court Judge Scott McAfee. His order rejected a motion to disqualify Willis and her office after she was accused of having an inappropriate relationship with an outside attorney she hired to lead the election interference case. ‘After carefully considering the trial court’s findings in its order, we conclude that it erred by failing to disqualify DA Willis and her office,’ the decision said.” Read more here (gift link).
#7 “Law Student Sues NY Attorney Grievance Officials, Seeking Materials Over Sexual Assault Claims.” From the New York Law Journal: “A Massachusetts woman who filed a disciplinary complaint against a law professor she claims sexually assaulted her has sued the New York Attorney Grievance Committee for the second, eleventh, and thirteenth districts, alleging that the committee has refused to provide her copies of the materials it used in a disciplinary decision against the professor. A Manhattan federal judge ruled in July that those who file disciplinary complaints against attorneys have a right to access related hearings, records, and some final dispositions related to their case under the First Amendment. The most recent case is putting that ruling to the test.” Read more here.
#8 TX Assistant AG Wins Legal Ethics Dispute Over 2020 Election Challenge. From KUT News Austin: “The Texas Supreme Court has sided with a top aide to Attorney General Ken Paxton in an ethics lawsuit over alleged false statements about Joe Biden’s 2020 win. In a 7-2 decision Tuesday, the Texas Supreme Court ruled that First Assistant Attorney General Brent Webster could not be disciplined for allegedly misleading the U.S. Supreme Court regarding the 2020 presidential results. The decision is a huge win for Webster and Paxton, his boss, who were both sued and threatened with disbarment for violating the lawyer’s code of conduct. Paxton’s case is pending.” Read more here.
#9 “Legal Ethics Matters to Watch in 2025.” From Law360: “After an eventful 2024, industry experts are looking ahead to what might be the big topics in legal ethics in the new year, including the ethics implications of artificial intelligence and ethics opinions that may be relevant to attorneys in the incoming second Trump administration.” Read more here.
#10 “Lawyer Ethics Top of the Agenda for 2025, Says Regulation Chief.” From the Law Society Gazette (UK): “Regulators will begin a major piece of work next year on how to ensure lawyers demonstrate and maintain professional ethics. Alan Kershaw, the chair of the Legal Services Board, said recent high-profile cases had showed this was an area that ‘clearly needs significant attention if the profession is to uphold public confidence.’” Read more here.
Regulatory Reform Watch
Florida Bar Removes “Diversity and Inclusion” From Official Policy. Will other states follow? From Reuters: “The Florida Bar on Friday eliminated its internal ‘diversity and inclusion’ policy amid ongoing pressure from the state’s high court to curtail attorney diversity efforts focused on race and gender.
The removal is the latest in a string of DEI rollbacks initiated by the Supreme Court of Florida, including ordering the state bar to stop funding diversity programs and eliminating diversity training from eligible continuing legal education topics for attorneys.” Read more here.
Washington Supreme Court Approves Regulatory Reforms Allowing Pilot Project for Companies and Organizations Other than Law Firms to Practice Law. From Reuters: “The Washington Supreme Court on Thursday gave the green light to a pilot initiative that would relax rules on who can deliver legal services in the state. Chief Justice Steven González signed an order that allows the court's practice of law board and the state bar association to develop the project. Under the plan, approved companies and organizations other than law firms would be able to practice law using non-traditional business models and technology, bending existing legal practice rules in a test period lasting up to a decade.” Read more here.
Recommended Reading
“The Potential of GenAI to Promote Access to Justice” by Joanne Sprague (Everlaw for Good). Here’s an excerpt:
Generative AI (GenAI) has been heralded as a transformative force, poised to revolutionize everything from medicine to education to law. While GenAI won't perform surgery or earn diplomas, it holds the promise of enabling lawyers to get due process for more of their clients or even empowering individuals to represent themselves in court. The harsh reality is that low-income individuals do not receive sufficient legal help for 92% of their civil legal problems, and legal aid organizations must turn away one of every two requests they get, according to the 2022 Justice Gap Report. GenAI-assisted legal support is not a substitute for lawyers, but may help legal aid professionals serve more clients efficiently and effectively.
If implemented equitably, GenAI could democratize legal knowledge and empower individuals to navigate the complexities of the justice system more easily. In her new book “Law Democratized,” Renee Knake Jefferson says that GenAI “has the potential to become the single most important tool in solving the legal justice crisis … if harnessed to do so ethically.” With GenAI, we can envision a possible future of informed self-representation and legal decision-making regardless of ability to pay. There are examples of this already.
Read the full piece at Law.com.
“White Paper: State Judicial Conduct Commissions—The Challenge of Judging Judges” by Bryna Godar (Wisconsin). From the introduction:
This report analyzes an often-overlooked set of state entities that hold substantial power: judicial conduct commissions. These entities, which exist in every state, are primarily designed to protect the public from judicial misconduct and have broad authority to investigate and sanction state judges. As state courts gain increasing attention, the public and scholars should likewise attend to the entities that oversee them.
Today, judicial conduct commissions sit at the intersection of two important trends. On the one hand, the public has become ever more aware of the need for meaningful judicial ethics requirements and enforcement, especially after high-profile controversies involving the U.S. Supreme Court. On the other hand, in some states, judicial conduct commissions have been quietly weaponized, part of a broader pattern of state legislatures or partisan actors attempting to exert control over state courts. Understanding the dynamics of these commissions—and considering how to provide meaningful checks on misconduct while limiting weaponization—is an important project for state public law.
“The Good Lawyers of January 6” by Brad Wendel (Cornell): From the abstract:
Much of the response by the community of legal ethics and professional responsibility scholars to the 2020 presidential election has been focused on the wrongs committed by lawyers like John Eastman, Jeffrey Clark, and Kenneth Chesebro, who created the alternate elector scheme to throw the decision regarding the election to the House of Representatives. Yet there was a group of lawyers, that I will refer to as the good lawyers of January 6, who forcefully and unequivocally opposed this plan, refused to cooperate in its execution, advised Vice President Mike Pence that it was not legally supportable, and in some cases threatened to resign in protest if President Trump went forward with it. These lawyers are, almost without exception, card-carrying movement conservatives, with pedigrees including clerkships for conservative Supreme Court Justices, membership in the Federalist Society, and service in prior Republican administrations. They include Greg Jacob, counsel to Vice President Pence; White House Counsel Pat Cipollone; White House Senior Advisor Eric Hershmann; retired federal judge J. Michael Luttig; Acting Attorney General Jeffrey Rosen; and Deputy Attorney General Richard Donoghue.
As a normative legal ethics theorist I am interested in whether there a coherent and attractive ideal or set of principles of ethical conduct by lawyers that would align with the refusal of these lawyers to advice or assist in the overthrow of the election. The answer to this question may inform the way we regulate lawyers and seek to educate and inspire law students to promote the highest ideals of the profession.
“A Professionally Responsible Supreme Court?” by Rakesh Anand (Syracuse): From the abstract:
he United States is a modern political community through and through. As such, it is organized around the ideas that We the People are sovereign, the People rules through law, and its law is an expression of reason. Because the U.S. Supreme Court is the most representative figure of the American political community, it has the foremost obligation to practice these ideas. In recent years, however, it has at least twice ruled—in cases involving the political question doctrine and the stance of noninterference—in a manner that appears to turn away from these ideas and, in particular, that of law as an expression of reason. This circumstance forces Americans to ask if the Court remains committed to the modern foundation of their political community, and to the opportunity to live a modern life that their political community is designed to afford.
This Article participates in the contemporary discourse about the U.S. Supreme Court. In doing so, it turns to history, philosophy, and political and constitutional theory, among other subjects, to present a discussion on the institutional role of the Court and its most basic professional responsibility. This interdisciplinary turn, as well as the accompanying focus on the Court as a whole and the fundamental ethical demand to which it is subject, stands in contrast to the theoretical and subject-matter orientation of much of the conversation today, which typically looks past the matters of first principle with which this Article is concerned. In orienting itself as it does, this Article seeks to add insight to the extant conversation by raising a question that lies at the base of this country’s constitutional democracy.
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Assistant General Counsel - Ethics & Compliance, Winston & Strawn — Chicago, Charlotte, Washington D.C., NYC, Miami, Dallas, Houston, or Los Angele. As an Assistant General Counsel-Ethics & Compliance, you will support the firm’s programs including new business and conflicts intake, lateral hiring, firm growth initiatives, and general regulatory risk management. Learn more and apply here.
Business Intake Specialist, Ethical Walls, Kirkland and Ellis — Chicago. This position offers the opportunity to assist in processing compliance requests to ensure they meet Firm policies and business requirements. The role is critical to identifying potential risk, communicating potential resolution, and securing the necessary approvals as part of the new business process and ongoing obligations to Firm clients. Learn more and apply here.
Lateral Conflict Attorney, Dentons — Glasgow or Edinburgh. Support the team by helping to ensure Dentons is compliant with the applicable legislative requirements and appropriately managing risk. This involves making sure effective compliance controls and procedures are in place, in particular avoiding conflicts of interest and protecting confidential information. This role will work with and support the UK, Ireland, and Middle East regions. Learn more and apply here.
Professional Liability Attorney, Lewis Brisbois — Las Vegas. The ideal candidate will have strong research and writing skills and at least two (2) to twelve (12) years of experience defending professional liability claims involving Directors & Officers, Legal Malpractice, Errors & Omissions, and Architects & Engineers. Learn more and apply here.
Professional Responsibility Attorney, Barnes & Thornburg — Hybrid. The ideal candidate will have four years’ experience with strong knowledge of legal ethics and loss prevention, knowledge of the Rules of Professional Conduct, and excellent communication skills. Learn more and apply here.
Program Manager, Office of Access to Justice and Court User Experience — Massachusetts Trial Court. This position supports the Trial Court and the communities it serves by acting as a court wide information source for A2J related needs. Through partnership and collaboration with the Trial Court and community stakeholders, the A2J office seeks to improve the experience for court users by implementing, assessing, and making improvements to programs and initiatives designed to enhance access to justice. Learn more here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
January 8, 2025. AALS Annual Meeting, Moscone Center, San Francisco. Learn more here.
9:50 AM - 11:20 AM Section on Professional Responsibility Official Program: Professional Responsibility in An Age of Technological Change + Presentation of Zacharias Prize
10:20 AM - 11:20 AM Multidisciplinary Approaches to Ethical Legal Tech Innovation
12:50 PM - 1:50 PM AALS Arc of Career Programs Focus on Faculty Governance: A Crucial but Often Overlooked Component of the Law Professor’s Professional Life
2:40 PM - 4:10 PM Professional Responsibility New Voices Panel
4:30PM -5:30 PM Informal PR Section Happy Hour @ the Cavalier’s Blue Bar in Hotel Zetta, 360 Jessie Street. A short walk from the Moscone Center, join your fellow professional responsibility colleagues for an informal happy hour.
January 9, 2025. AALS Annual Meeting, Moscone Center, San Francisco. Learn more here.
8:00 AM - 9:30 AM Section on Leadership Official Program, Co-Sponsored by the Section on Professional Responsibility: The Courageous Intersection of Leadership Education, Professional Responsibility, and Professional Identity Formation
12:50 PM – 2:20PM AALS Awards Ceremony – The Deborah L. Rhode Award
January 30 - February 2, 2025. Association of Professional Responsibility Lawyers Mid-Year Meeting, Phoenix. Learn more here.
May 28-30, 2025. American Bar Association National Conference on Professional Responsibility, Washington DC. Learn more here.
August 7-9, 2025. Association of Professional Responsibility Lawyers Annual Meeting, Toronto. 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.