LER No. 68 - Protests & Mental Health on Bar License Applications, AZ Limits Lawyer Ethics Complaints, Inside Supreme Court Ethics, the End of a SCOTX Era & More (12.09.24)
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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Hello from Vancouver! I’m writing you after celebrating the end of an era, quite literally. Last night along with 60,000 other Swifties, I sang the last songs of the Eras Tour. For readers who are counting, yes, this is my fourth stop. My daughter Grace accompanied me to Detroit, LA, and Toronto (where we first saw Taylor Swift together a decade ago on her 1989 World Tour). This time, my husband Wallace joined me (“karma is the guy called the Chief, coming straight home to me” - IYKYK)! The Eras Tour marks a special place in our cultural history. I’ve never been part of an event like this that sparks such joy, kindness, and understanding amidst tens of thousands of strangers all connected through lyrics that created a common soundtrack in each of our unique lives. (For a glimpse of my own personal “Eras Tour,” revisit LER No.14).
This wasn’t the only end of an historic era I witnessed last week. The Supreme Court of Texas honored Chief Justice Nathan Hecht after he presided over his final oral argument on December 5. During his 35 years on the Court, he authored 530 opinions, filling a total of seven specially-bound volumes of the “Hecht Reports” in the style of the old Texas Reports (see below). Nearly two dozen former justices and two former chief justices attended the argument, which ended with a standing ovation for Chief Justice Hecht, who will officially enter his retirement era January 1, 2025.
Now, let’s dive into the Monday morning evening Roundup. (Apologies for the tardy delivery today!)
Highlights from Last Week - Top Ten Headlines
#1 Should Character and Fitness Applications Consider Campus Protests? From the Reuters: “Bar admission authorities in California will consider applicants’ participation in campus protests on an ‘individual basis’ during the moral character process, following an internal review. A State Bar of California working group, which took up the issue of whether and how the bar should continue to weigh applicants' participation in campus protests when determining if they have the moral character to become licensed attorneys, said that evaluators must be careful to exclude protected political speech or expression, according to a memo, slated to be discussed by the state bar’s Committee of Bar Examiners on Friday.” Read more here. (H/T Tony Sebok)
#2 “Inside the Supreme Court Ethics Debate: Who Judges the Justices?” From the New York Times: “In private meetings and memos, the justices made new rules for themselves — then split on whether they could, or should, be enforced.” Read more here (gift link).
#3 New AZ Rule Limits Ethics Complaints Against Lawyers. From the Arizona Capitol Times: “The state’s high court on Dec. 4 agreed to narrow the ability of those not directly involved in legal matters to pursue ethics complaints against lawyers despite concerns it will lead to less transparency. The new rule in essence creates two classes of people who can ask the State Bar of Arizona to determine whether the actions of an attorney violate a host of rules that govern how they are supposed to conduct themselves. … Nothing would change for clients of an attorney in question who would be involved at all stages of the disciplinary process. Complaints also still could be filed by people with first-hand knowledge of the alleged misconduct, and judges who, through their duties, become aware of the improper activities. Everyone else still could ask the State Bar, which is tasked by the Supreme Court with investigating misconduct, to take a look. But it would be solely up to the Bar to decide whether to pursue an inquiry or dismiss it out of hand. More to the point, the person filing the complaint now would not be notified of what is going on with the investigation. He or she also could have no impact in that decision and could not object to any agreement the Bar reached with the attorney. The rule was crafted by David Byers, who runs the Administrative Office of the Court. He said it was designed to keep the disciplinary process from ‘being weaponized by partisans or the appearance of that occurring.’” Read more here.
#4 Judge Newman Continues to Fight Suspension. From Law360: “U.S. Circuit Judge Pauline Newman asked the D.C. Circuit on Thursday to rule that a suspension her colleagues have imposed on her for refusing to participate in an investigation into her fitness to serve as a Federal Circuit judge violates the U.S. Constitution.” Read more here.
#5 “Lawyers for Embattled NH Supreme Court Justice Argue AG has a Conflict of Interest.” From the NH Business Review: “Attorney General John Formella, who previously served as Gov. Chris Sununu’s legal counsel, should be disqualified from a high stakes criminal case brought against a sitting Supreme Court justice, defense attorneys argued Monday. They contend that Sununu will be a key witness in the case against Anna Barbara Hantz Marconi, should it go to trial, and that Formella’s ties to Sununu present a conflict of interest. Sununu appointed Hantz Marconi to the state Supreme Court in 2017. She’s now accused of attempting to sway him into intervening in an ongoing investigation into her husband, Geno Marconi, the state ports director.” Read more here.
#6 Federal Judges Reverse Retirement Plans. From the Bloomberg Law: “A Senate Republican stopped short of saying he’d pursue an ethics complaint against an appellate judge in his state if he reversed his retirement plans and prevented Donald Trump from filling his seat, and called another judge who recently changed course a ‘political hack.’ Judiciary Committee member Thom Tillis of North Carolina said Wednesday that he ‘absolutely would do everything I had to to draw attention to a precedent’ Judge James Wynn ‘would be breaking’ by remaining active on the US Court of Appeals for the Fourth Circuit.” Read more here.
#7 Gorsuch Recuses in Environmental Case. Two headlines for this news. First, from CNN: “Supreme Court Justice Neil Gorsuch announced Wednesday that he will recuse himself from a case dealing with a western railway line after Democratic lawmakers called attention to the fact that a longtime ally of his could benefit from the court’s decision. The court’s clerk notified attorneys in the case in a letter that, in light of the Supreme Court’s recently approved code of conduct, Gorsuch would recuse in the case set for oral argument Tuesday. The letter did not elaborate on Gorsuch’s thinking.” Read more here. Second, from Mark Joseph Stern at Slate: “On Wednesday afternoon, Supreme Court clerk Scott Harris sent a very unusual letter to lawyers involved with an upcoming environmental case. Justice Neil Gorsuch, the clerk wrote, ‘has determined that he will not continue to participate in this case,’ ‘consistent with’ the court’s new ethics code. Gorsuch had evidently participated in every previous stage of the case, including the vote to take it up in the first place. With arguments less than a week away, however, he had abruptly decided to recuse himself—without explaining why.“ Read more here.
#8 “Can Lawyers Accept Gifts From Clients or Give Gifts to Clients?” From Practice Panther “Lawyers can accept gifts from clients in certain situations, but the context and value of the gift play a significant role in determining whether it is ethical. It’s probably happened to many attorneys: upon receiving a gift from a client, it crosses your mind — is this ethical to accept? On the other end of the question, is it ethical to give a gift to a client? In the classic, beloved attorney answer to both questions — it depends.” Read more here.
#9 “Mental Health Screening in Lawyer Licensing.“ From the Stanford Law School Deborah L. Rhode Center on the Legal Profession: “Aspiring lawyers who have struggled with their mental health face a major disincentive to seeking help. Many states ask about a bar applicant’s mental health status or history as part of the ‘moral character’ inquiry. These questions take a variety of forms, but all can be used to deny an applicant’s admission into the bar. … This White Paper discusses the mental health crisis afflicting the United States in general and in the legal profession in particular, compiles a comprehensive list of current state of mental health screening practices, and situates those practices amid the broader policy landscape. Ultimately, we find that the past two decades have seen a growing number of states move away from mental health screening that broadly inquires into applicants’ mental health and treatment history. But states have declined to eliminate mental health screening altogether.” Read more here.
#10 “Legal Ethics: Navigating the ethical challenges of advertising and solicitation in the digital age.” From Sari Montgomery (Robinson, Stewart, Montgomery & Doppke, LLC) in the Business of Law Digest: “In the rapidly evolving digital landscape, attorneys and law firms are increasingly turning to third-party marketing professionals, online platforms, and social media for advertising and soliciting new clients. This shift brings both opportunities and challenges, particularly in adhering to ethics rules.” Read more here.
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