LER No. 69 - "Kids for Cash" Judge Clemency, Ethics of Lawyer Investigations, Judicial Recusal 5-Min Rule, New Civil Justice Innovation Report, Gordon on Wendel's "Canceling Lawyers" & More (12.16.24)
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 Holidays! I hope you find time to rest and reflect over the next couple of weeks. The Legal Ethics Roundup will be resting too, but only until the first Monday in January, when I’ll be back with headlines plus reading recommendations, jobs, events, and much more. For now, here are your headlines plus a couple of holiday gift ideas…
Highlights from Last Week - Top Ten Headlines
#1 Clemency Questioned Over “Kids for Cash” Judge. From Heather Long in the Washington Post: “My jaw dropped when I saw Michael Conahan, a former judge involved in a notorious ‘kids for cash’ scandal in Pennsylvania, among the nearly 1,500 people President Joe Biden granted clemency to last week. … I don’t know much about most of the people on Biden’s list, but I do know a fair amount about Conahan. I started my career as a journalist in Pennsylvania and had a front-row seat when the scheme — one of the worst corruption scandals in U.S. juvenile justice history — came to light in 2008 and 2009. Conahan and fellow judge Mark Ciavarella Jr. were accused of receiving cash kickbacks in exchange for helping to construct two for-profit juvenile detention facilities in Luzerne County and then sentencing young people to those facilities to keep them full. … They finally got caught only because one distraught family contacted the Juvenile Law Center, a nonprofit legal aid group in Philadelphia.” Read more here (gift link).
#2 The Ethics of Investigations Challenged in Two Law Firm v. Law Firm Cases. David Lat (Original Jurisdiction) flagged what he calls a “mini-trend of law firms suing other law firms” in yesterday’s Judicial Notice. I took a closer look, and the two lawsuits he identifies both raise issues surrounding the ethics of lawyers conducting investigations of opposing parties. First, from Reuters: “Plaintiffs law firm Keller Postman has sued Fox Corp-owned streaming company Tubi and its lawyers at Jenner & Block, seeking a court order that would forbid them from contacting its clients as the two sides trade accusations of litigation misconduct. The lawsuit, filed on Wednesday in Los Angeles County Superior Court, also seeks to bar Tubi and Jenner from using any materials related to Keller Postman's clients that they obtained through a private investigator.” Read more here. Second, also from Reuters: “A lawyer representing alleged victims of Sean ‘Diddy’ Combs filed a lawsuit accusing U.S. law firm Quinn Emanuel Urquhart & Sullivan of harassing his colleagues, his clients and his family on behalf of an unidentified celebrity allegedly tied to the incarcerated media mogul. Tony Buzbee and his Houston-based law firm sued Quinn Emanuel, in Harris County, Texas, district court on Thursday, accusing the firm of engaging in ‘outrageous litigation gamesmanship’ on behalf of one of its clients to whom Buzbee sent a demand letter last month. ‘The tactics used by Quinn Emanuel's shadowy investigators are abusive and out of control,’ Buzbee said in an email. ‘This conduct is egregious and unethical. We are asking the court to stop it.’” Read more here.
#3 Should State Judges Receive the Same Protections as Federal Judges? The Michigan Legislature Says Yes. From the State Bar of Michigan: “The proposed Michigan Judicial Protection Act won another key victory this week. The state Senate passed HB 5724 with bipartisan support. The Judicial Protection Act would ensure that state-level judges in Michigan have the same protection currently provided by federal law to their federal colleagues. … ‘Judges should never have to live in fear for their own safety or that of their families.’ State Bar of Michigan President Joseph P. McGill said. ‘This bill is essential in safeguarding their well-being and upholding the rule of law—a fundamental pillar of our democracy—against the threats of fear, violence, and intimidation.’ The bill will return to the House for concurrence before going to Gov. Gretchen Whitmer, who is expected to sign the legislation into law. HB 5724 previously passed the House 81-27.” Read more here.
#4 “Should Lawyers Be Accountable for Their Clients?” From Robert Gordon (Stanford/Yale) in JOTWELL reviewing Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret by Brad Wendel (Cornell) : “Wendel’s argument is serious and well-made. But I can’t help thinking that it understates the gravity of the case that inequalities in representation pose to conventional legal ethics. The adversary-system ideology that justifies lawyers in aggressively representing any clients who can hire them presupposes that people who are harmed by the actions of such interests can hire their own lawyers. But they can’t afford to, as demonstrated by the fact that about 80% of parties to civil ligation (mostly debtors facing collection, or tenants facing eviction) are unrepresented. Nonetheless, I welcome Wendel’s insistence that lawyers’ decisions about what clients to represent are not immune from moral questioning and critique, but rather require justification.” Read more here.
#5 Judicial Recusal - the “Five-Minute Rule.” From former U.S. Court of Appeals for the District of Columbia Circuit Judge David S. Tatel in the Washington Post: “In recent months, we have heard calls for judicial reform, with critics advocating new rules and structural changes to enhance the courts’ transparency and accountability. The president’s own proposals have been the subject of vigorous public debate. Beyond mandatory codes of conduct and term limits, one focus of critics’ concern is recusal — a judge’s withdrawal from a case to avoid a conflict of interest or the appearance of a conflict. … During my time as a judge on the nation’s second-highest court, the U.S. Court of Appeals for the District of Columbia Circuit, I adopted what I called a ‘five-minute rule’ in deciding whether to recuse myself from a case. The rule was simple: If I had to spend more than five minutes thinking about how my participation in a case might be perceived, I chose to recuse.” Read more here (gift link).
#6 Ethics Complaints Filed Against Judges Who Decided Not to Retire. From the Bloomberg Law: “A conservative judicial advocacy group filed ethics complaints against two Democratic-appointed judges who reversed their retirement plans after Donald Trump’s Nov. 5 election win. The Article III Project directed their complaints against Judges Max Cogburn of the Western District of North Carolina and Algenon Marbley of the Southern District of Ohio, who previously announced plans to step back from active status upon confirmation of a successor. The complaints, filed with the Judicial Councils of the Fourth and Sixth Circuits, call for an investigation into the judges’ decisions to reverse their plans to take senior status.” Read more here.
#7 Civil Justice Innovation Report Published by the American Academy of Arts & Sciences. From the Legal Services Corporation: “Legal scholars discuss the American Academy of Arts & Sciences’ new report on civil justice innovation on the latest episode of LSC's ‘Talk Justice’ podcast, released today. LSC President Ron Flagg hosts the conversation with Martha Minow, 300th Anniversary University Professor at Harvard University and former dean of Harvard Law School; William C. Hubbard, dean of University of South Carolina School of Law and co-founder and board chair of the World Justice Project; and Daniel B. Rodriguez, former dean of Northwestern University Pritzker School of Law and holder of the Harold Washington Professorship. ‘Achieving Civil Justice: A Framework for Collaboration,’ is the latest publication from the Academy’s Making Justice Accessible project. Since 2014, this initiative has highlighted the scale of the civil justice gap by recognizing its social, economic and human costs, and calling for improved data collection. The project team is also looking ahead to set standards for civil justice and to ensure all Americans have meaningful access to justice.” Read more here and listen to the podcast here.
#8 Professional Conduct Rules on Discrimination and Diversity. You get articles covering professional conduct rules from two different states for this topic. First, from Law360: “The Second Circuit on Monday revived a challenge to a new rule for Connecticut attorneys intended to reduce discrimination, ruling that the alleged chilling effect the two suing lawyers detailed in their complaint gives them standing even if the rule hasn't been enforced against them.” Read more here. (H/T Tony Sebok) Second, from Reuters: “The Florida Bar is on track to overhaul its policy advocating ‘diversity and inclusion’ for lawyers in the state, eliminating those terms and adopting a more general policy focused on ‘the quality of legal services.’ The potential change marks the latest move to curtail attorney diversity efforts focused on race and gender in Florida amid pressure from the state's high court. The Supreme Court of Florida in January directed the Florida Bar to remove funding for diversity and inclusion from its upcoming budget, prompting the revision of the board policy.” Read more here.
#9 “Federal Judiciary Misleadingly Conflates Low Number of Sexual Harassment Complaints With Lack of Misconduct.” From Aliza Shatzman (Legal Accountability Project) in Above the Law: “Just 9% of the 78 workplace dispute resolution matters initiated by federal court employees over the two-year period between 2021 and 2023 were initiated by term judicial law clerks, according to the Administrative Office of the U.S. Courts’ 2023 Workplace Report, released a few weeks ago. To put this in perspective, that’s around seven complaints over a two-year period, or fewer than five misconduct complaints per year. This negligible number of workplace misconduct complaints suggests limited use of the federal judiciary’s employee dispute resolution process and little progress toward fostering a culture of reporting, despite sustained criticism of the federal courts and several recent high-profile sexual harassment scandals.” Read more here. (Full disclosure: I recently joined the Legal Accountability Project’s Advisory Board).
#10 APRL Recommends Revising Model Rule 5.4 to Allow Lawyers to Share Fees with Nonlawyers. From the Association of Professional Responsibility Lawyers (APRL) on LinkedIn: “APRL submitted to the ABA today its Future of Lawyering subcommittee's Proposed Revisions to Model Rule 5.4 (Professional Independence of a Lawyer) and Report encouraging the ABA to adopt the revised rule, which would allow lawyers to share fees with nonlawyers under certain conditions and in compliance with a jurisdiction's ABS regulations and registration requirements. APRL's proposal will also be distributed to the individual US jurisdictions for consideration.” Read more here. (H/T Lucy Ricca).
Holiday Shopping
Still need a gift for the law student, lawyer, or judge in your life? Here are two suggestions from yours truly. Law Democratized: A Blueprint for Solving the Justice Crisis is available here. And Shortlisted: Women in the Shadows of the Supreme Court — in paperback with a new foreword by Melissa Murray (NYU) — is available here.
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