LER No. 67 (First Monday Edition)- Giuliani Lawyers Quit Over Ethics, Mexico Judicial Reform, Legal Ethicists on Bluesky, Ethics History, Trivia, Jobs, Events, Rec Reads & More (12.02.24)
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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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.
Highlights from Last Week - Top Ten Headlines
#1 Giuliani’s Lawyers Withdraw Over “Professional Ethics Concern.” From the New York Times: “Rudolph W. Giuliani was not having a good day, and it showed. The former New York City mayor was in federal court in Manhattan on Tuesday to discuss his continuing failure to give up nearly $11 million worth of personal assets. The forfeiture was meant as a down payment on the $148 million Mr. Giuliani owes to two Georgia election workers for defaming them by claiming, without evidence, that they had helped to steal the 2020 presidential election. But first, Judge Lewis Liman allowed Mr. Giuliani’s lawyers to withdraw from the case. They had requested to be removed two weeks ago, citing an unspecified ‘professional ethics concern.’ ‘I’m sorry it came to this,’ Kenneth Caruso, one of Mr. Giuliani’s lawyers, said before he and his co-counsel left the hearing.” Read more here.
#2 Ethics Issues Facing Confirmation of No. 2 DOJ Official. From the Washington Post: “Soon after winning the presidential election, Donald Trump announced that he wanted to install Todd Blanche, one of his criminal defense attorneys, as the No. 2 official in the Justice Department. Blanche would fix ‘a broken System of Justice,’ Trump declared in a statement. Days later, Blanche was hard at work in his current role, signing a court filing that derided one of the cases against Trump as ‘politically-motivated and fatally flawed’ and argued that it should be dismissed. Blanche — Trump’s pick to be the deputy attorney general — faces an uneasy balancing act, particularly given the president-elect’s stated desire to seek retribution against his investigators and political foes. If Blanche is confirmed, his previous work representing Trump in multiple criminal cases would raise ethical concerns unless he recuses himself from anything at the Justice Department that might touch on those matters, according to interviews with several legal experts.” Read more here.
#3 Sophia Park is Youngest Person to Pass CA Bar. From the National Public Radio: “Sophia Park has become the youngest person to pass the California bar exam at 17 years, 8 months old. She beats the record set by her brother Peter Park in 2023.” Read more and listen here.
#4 Judicial Reforms in Mexico. From Harvard Law Today: “As a result of a controversial new constitutional amendment under which Mexico’s 6,000 judges will be elected by popular vote, the country’s judicial system will be unstable and unpredictable, smaller domestic companies and all foreign ones will be disadvantaged, and judges may write decisions to appease voters in an effort to keep their seats, according to Alfredo Gutiérrez Ortiz Mena LL.M. ’98, who recently resigned as a justice on the Mexican Supreme Court rather than sit for the election taking place in June 2025. The amendment, which was approved in September and includes other changes to the country’s governance, was spearheaded by then-President Andrés Manuel López Obrador and is supported by his successor, Claudia Sheinbaum, who was elected in June. Previously, all federal and some state judges were appointed through merit-based systems after training for and passing relevant exams. Judges and court workers protested the law’s passage, which U.S. Ambassador Ken Salazar called ‘a major risk to the functioning of Mexico’s democracy,’ and Gutiérrez Ortiz Mena said more than half the country’s federal judges had submitted letters of resignation.” Read more here.
#5 Latest in GMU Law Professor Joshua Wright Sexual Misconduct Saga. From the Law360: “A former law professor on Wednesday dropped his suit against George Mason University over its Title IX investigation into allegations that he retaliated against students who filed sexual misconduct claims against him.” Read more here.
#6 “Post Office Inquiry Exposes Lack of Integrity in Lawyers.” From Richard Moorhead in The Times: “The legal profession needs a stronger regulator to drive up standards of behaviour and counter excessive zeal, abuse and irresponsibility. … In the Post Office scandal, deliberate concealment, a lack of candour, the manufacturing of half-truths and the massaging of risk was a feature not a bug. Evidence to the Post Office inquiry has suggested that lawyers were not mere supplicants of their clients.” Read more here.
#7 DOJ Settles With Prosecutor/Whistleblower in Judicial Sexual Misconduct Case. From the Bloomberg Law: “The Justice Department has reached a settlement with a former federal prosecutor who filed a whistleblower complaint alleging that she was retaliated against by leaders of the US attorney’s office in Alaska after she reported sexual misconduct by a federal judge. The whistleblower, who clerked for US District Judge Joshua Kindred in Alaska before joining the US attorney’s office in Anchorage, had alleged in a complaint with the Office of Special Counsel that she was denied a permanent job as a federal prosecutor because she informed supervisors in the fall of 2022 of sexual misconduct by Kindred. Details of the settlement weren’t made public in an OSC release posted Wednesday. Special Counsel Hampton Dellinger, who leads the agency, in a statement thanked the whistleblower ‘for her incredible courage in speaking up about sexual misconduct by her former boss.’” Read more here.
#8 CO Ethics Panel Says Judges Can’t Serve as Temporary Election Workers. From Colorado Politics: “The Colorado Supreme Court's ethics panel advised members of the judiciary last month that they cannot serve as temporary election workers. The Colorado Judicial Ethics Advisory Board, which consists of judges, lawyers and a non-attorney, cited two reasons why appointed judges should refrain from serving as elections judges. First, with the exception of nonpartisan elections, temporary workers would have to publicly disclose their political affiliation at the outset. Second, the Code of Judicial Conduct limits the types of appointments state judges can take.” Read more here.
#9 Innovation from Down Under - Australia’s Justice Bus. From Monash University News: “In an innovative step towards enhancing community legal education, Monash Law Clinics, in partnership with the Monash Law Students Society, has launched the Justice Bus. This mobile initiative will deliver legal education directly to schools and community groups across regional Victoria, making legal knowledge more accessible and engaging. Professor Jeff Giddings is the President of the Monash Law Clinics Management Committee and has been a longtime observer and fan of projects like the Justice Bus around the world. The very concept of the Justice Bus was inspired by a similar initiative called the Jussbuss from the University of Oslo. ‘The name Justice Bus essentially is a variation on the Jussbuss arrangement from the University of Oslo. It’s operated since the 1970s and has been the catalyst for other similar arrangements,’ said Professor Giddings. ‘The Justice Bus is an idea that is a form of community legal education, something which has been a strong suit of community legal centres for decades.’” Read more here.
#10 Legal Ethicists on Bluesky. If you haven’t joined the conversations about lawyer and judicial ethics on Bluesky, now is the time to jump in. Thanks to starter packs from Maybell Romero (Tulane) and David Kluft (Massachusetts Office of Bar Counsel) it’s easy to follow ethics academics and practitioners. Join the Ethics and Professional Responsibility Law Profs Starter Pack by Maybell here and the Legal Ethics Starter Pack by David here or scan the QR codes for both below. And you can follow me at @legalethics.bsky.social
Regulatory Reform Watch
Will NJ Become the 41st State to Adopt a Duty of Tech Competence? From LawSites: “The New Jersey Supreme Court is seeking comments on proposals to adopt the duty of technology competence for lawyers and to add a technology requirement for continuing legal education. If the court ultimately adopts the proposals, New Jersey would become the 41st state to require technology competence for lawyers and the fourth state to require tech-related CLE. In 2012, the American Bar Association amended Comment 8 to Model Rule of Professional Conduct 1.1, which pertains to competence, to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology.” Read more here.
Recommended Reading
“The Costs of the Vexatious Lawyer: Who Bears Responsibility?” by Jayanth Krishnan (Indiana University):
This Article investigates how the law should respond to a lawyer who engages in unprofessional, tormenting, or what is often referred to as “vexatious” conduct during litigation. At present, a federal law – 28 U.S.C. §1927 – allows courts to issue sanctions upon a vexatious lawyer. When such a lawyer works for a law firm, a deep split has emerged among the circuits. Some courts have ruled that law firms may also be liable for their lawyers’ actions under the statute. Other circuits, though, have concluded that law firms are free from this type of vicarious liability. Unfortunately, the problem with this debate is that by only focusing on law firm liability, a universe of entities – nongovernmental organizations, corporations, nonprofits, law school clinics, and the like – are disappeared from the dialogue. Moreover, even when examining law firms alone, there is often an assumed homogeneity in how they are treated. As a result, other key considerations have not been thoughtfully addressed to date.
Therefore, as this Article argues, once there has been careful reflection, several reasons arise for why the law ought to refrain from assigning financial responsibility to an organization that employs a vexatious lawyer. First, holding an organization liable may not align with the principle of proportionality and can lead to lesser resourced entities scaling back or even shuttering operations, which could have devastating ramifications for clients seeking representation. Second, the imposition of collective punishment could also discourage whistleblowing and greater transparency, with unethical behavior potentially going unchecked. Third, vicarious liability could cause financial and reputational damage to innocent parties for actions undertaken beyond their control. Finally, holding an entire organization liable for the conduct of one lawyer undermines a foundational tenet of the bar’s professional responsibility rules – namely, personal accountability – and thereby dilutes the consequences that the individual wrongdoer deserves to face. Ultimately, an irony exists here: those supporting organizational liability often do so out of a noble desire for attaining a utilitarian form of justice. However, this advocacy can actually have detrimental implications both for clients and causes that are all too frequently marginalized in today’s political environment.
“Life Beyond Zoom: The Promise of Emerging Virtual Court Alternatives” by Dyane O’Leary (Suffolk):
Many people think only of Zoom when they think of virtual courts. That’s wrong—or far too narrow. This Essay places courts’ use of synchronous remote videoconferencing tools into a wider context and explores categories of emerging options to support modern judicial proceedings, from the simple—online mobile-friendly smartforms—to the more imaginative—personalized avatars interacting in a virtual online courthouse environment.
To date, standard videoconferencing software has largely been the default—but it is no longer the only option at the store. If invention takes good imagination and a pile of junk, there is plenty of imagination about the next era of virtual courts and plenty of emerging tools that are far from junk. “Virtual court” is not a one-size-fits-all concept; not every flavor of “live” videoconferencing or remote court technology or electronic online access to case documents and forms is the same. This Essay offers a bird’s-eye view of three categories of emerging technologies supporting the modern era of virtual courts: Online court forms automation; Courtroom hybrid technologies; Immersive online “all-in-one” platforms. If necessity is the mother of all invention, the need on behalf of all consumers of the court system as a service is here.
“Silent Boundaries: Exploring the Limits of Legal Confidentiality in Poland” by Stanislaw Lipiec (Jagiellonian University Krakow) and Marek Gnusowski (Poznan University):
Legal confidentiality, an integral aspect of European legal culture and legal services, plays a pivotal role in safeguarding the trust and privacy of professional-client relationships. This study focuses on the multifaceted dimensions of legal secrecy, particularly within the context of commercial lawyers in the European legal services market, using Polish legal advisers as an exemplar. The research explores evolving attitudes, expectations, and perceptions of legal secrecy amidst dynamic legal changes and discrepancies in interpretations among lawyers, public authorities, and citizens. A comprehensive mixed-method approach was used, including surveys, structured in-depth interviews, content analysis, and desk research, to investigate the diverse facets of legal secrecy. Findings reveal that while legal secrecy remains highly esteemed, its interpretation varies significantly across national and EU laws and among stakeholders. There are a multitude of types of legal secrecy, creating confusion and opportunities for public authorities to breach confidentiality. The study underscores the critical need for standardisation and unification of legal secrecy across European countries to enhance cross-border legal services, streamline justice systems, and bolster citizen protection. It emphasises that despite legal and societal changes, the fundamental essence and importance of legal secrecy in upholding democracy, justice, and trust remain steadfast.
“The Unintended Costs of Advance Waivers of Future Conflicts” by Ashley London (Duquesne). From the abstract:
The American Bar Association ("ABA") unenthusiastically recognized advance waivers of future conflicts for the first time in a 1993 formal opinion. These allow lawyers to take on prospective clients whose interests will be adverse to current clients at some point in the future. They also sidestep the ethics rule requirement of obtaining true informed consent from a client to waive a conflict of interest because, at the time of signing, the conflict is not yet ripe. After a full-court press by its own Business Law Section Ad Hoc Committee during the Ethics 2000 Commission's review of the Model Rules of Professional Conduct, the ABA repealed its limited approval in favor of a broader acceptance of advance waivers in 2005. After all, advance waivers mean lawyers and law firms can grow profits by not having to turn down clients with conflicting interests. The intended consequences of such waivers are to allow larger law firms to keep as much business as possible, while also permitting large and sophisticated clients an unfettered choice of legal representation. They also come with some unintended consequences: keeping large clients condensed in a small number of large firms, thereby creating industry oligopolies where diversity among partners is staggeringly low; increasing the opportunity to exercise confirmation bias in Big Law; and placing the burden on courts to police these agreements in what has proven to be a disorderly fashion.
This Article asserts that advance waivers of conflicts should be carefully scrutinized and perhaps disallowed because they exist primarily to permit Mega Big Law firms to monopolize business and crowd out competition. The use of advance waivers by industry lawyers may also have a dampening effect on diversity efforts by increasing confirmation bias, and can prevent smaller and mid-sized law firms from establishing additional areas of expertise. Inconsistent opinions by courts across the country and the lack of guidance from ethics policymakers make crafting reliable rules about drafting enforceable advance waivers nearly impossible. Instead, Mega Big Law firms could simply seek informed consent from sophisticated clients at the time a potential conflict arises, but not before. Delaying informed consent to the point at which there is a conflict could satisfy increasingly chaotic courts, as well as allow policymakers to show the rules of professional conduct apply to all law firms regardless of size or wealth.
Legal Ethics History
A History of Judicial Ethics, of Sorts, Asks “Who Judges the Judges?”
From Judge Jed S. Rakoff in the New York Review reviewing the book The Court at War: FDR, His Justices, and the World They Made by Cliff Sloan: “An age-old question: Who judges the judges? For the justices of the US Supreme Court during World War II, the answer, according to Cliff Sloan, was Franklin Delano Roosevelt. In his insightful book The Court at War, Sloan, a professor of constitutional law at Georgetown University Law Center, suggests that whatever their pretensions to independence, most of the nine justices then on the Court (the ‘war justices’) effectively capitulated to whatever the president wanted. It was not just that they were personally beholden to FDR, who by the summer of 1941 had appointed seven of them. . . . It was also that, in seeming contravention of the doctrine of separation of powers and the well-established ban on such contacts, various justices regularly met or otherwise communicated with Roosevelt, advising him on everything from executive appointments to the drafting of statutes, exchanging views with him on everything from public policies to political strategies, and listening to his often strongly held opinions on matters that might soon come before the Court or in some cases already had.” Read more of the review here and buy the book 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 34% have gotten it right. Will you?
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Conflicts Counsel, Kirkland & Ellis — Washington DC. The Conflicts Counsel works closely with attorneys, the Office of the General Counsel and members of the Business Intake & Conflicts Department around the globe to identify possible ethical and business-related conflicts of interest. This position is critical to identifying potential risk, communicating potential resolution, and securing the necessary approvals as part of the business intake and new hire process. Learn more and apply here.
Professional Responsibility Attorney, Barnes & Thornburg — Remote. The Professional Responsibility Attorney is a member of the Professional Responsibility Committee and serves with a team of lawyers as in-house legal counsel to the Firm. The Committee’s work centers on legal ethics, professional responsibility and loss prevention. Learn more and apply here.
Senior Conflicts Attorney, Debevoise & Plimpton — New York or Hybrid. Advise relevant attorneys and others in the firm on the information required to complete conflicts of interest checks; review and analyze conflicts of interest reports and identify any potential conflicts; counsel relevant attorneys and others in the Firm on conflicts issues as they arise; assist with drafting and reviewing waiver letters and engagement letter provisions to ensure they adequately address conflicts scenarios; conduct trainings; and other responsibilities. Learn more and apply here.
Staff Counsel, Office of Legal Ethics Counsel/Advisory Committee of the Supreme Court of Missouri — Jefferson City. The primary role of this position is to answer ethics questions with a high degree of communication and professionalism by providing informal advisory opinions about lawyers’ prospective conduct under the Missouri Rules of Professional Conduct. This position may also assist in the development of ethics educational information for lawyers’, such as CLE programs, website resource pages, etc. Learn more and apply here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
December 12, 2024, 1-2PM Eastern. Legal Ethics Year in Review Webinar with professional responsibility attorney Trisha Rich and Adams and Reese Partner Lucian Pera. Rich and Pera are offering free one-hour review of the most important developments of the last year (or so) in legal ethics and lawyering. Learn more here.
January 8, 2025. Section on Professional Responsibility Annual Panel and New Voices Session, Association of American Law Schools Annual Meeting, San Francisco. Learn more here.
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.