LER No. 71 - New ABA Opinion on Lawyers for Orgs, Legal Ethics Issues Facing the New Administration, Judicial Ethics -Calls/Speeches/Finances, Law Democratized Turns One & More (01.13.25)
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
Thank you for being here. Welcome to what captivates, haunts, inspires, and surprises me every week in the world of legal ethics.
Each week the Legal Ethics Roundup is viewed by more than 1,500 readers across the United States and in 45 different countries. Subscribers include judges, lawyers, professors, state bar administrators, students, government officials, and people who care about the future of our democracy.
If you haven’t subscribed, take a moment now to sign up at the link below. It’s free! And you’ll never miss the latest edition. I hope you’ll also consider becoming a paid subscriber.
Do you have colleagues who care about legal ethics? Please share the Roundup with them. I’d love to see our community continue to grow!
It’s back-to-school at the University of Houston Law Center today, where I’m teaching Professional Responsibility this semester - a special welcome to my students! I’ve just returned from San Francisco where I attended the Association of American Law Schools Annual Meeting. It was wonderful to reconnect with legal ethics colleagues and meet new friends. One highlight was *finally* meeting my editor Clara Platter (NYU Press) in person after working together virtually for more than five years to publish two books (really three, if you count the paperback edition of Shortlisted: Women in the Shadows of the Supreme Court). Here we are in the exhibition hall, where they kindly promoted Law Democratized: A Blueprint for Solving the Justice Crisis on the banner - just in time to celebrate the book’s one-year birthday!
Highlights from Last Week - Top Ten Headlines
#1 ABA Issues New Opinion on the Ethical Obligations of Lawyers for Organizations. From the ABA Journal: “When an organization’s in-house counsel or outside counsel communicates legal advice to its constituents, it should be clear that the lawyer represents the organization, not the individuals, according to a new ABA ethics opinion. However, as Formal Opinion 514 from the ABA’s Standing Committee on Ethics and Professional Responsibility explains, these constituents may assume or think that the lawyer is advising them. Thus, the lawyer has ethical obligations to explain that the advice is for the organization, not these individuals, which can include board members, officers and employees.” Read more here.
#2 Prosecutorial Ethics - “The State of Prosecutorial Independence and Prosecutorial Discretion.” From the ABA’s JustPod Podcast: “In February 2024, the ABA launched its Prosecutorial Independence Task Force. Two of our guests, Professor Ellen Yaroshefsky (Hofstra Law School), and John Choi (Ramsey County Attorney in Ramsey County, Minnesota), are co-chairs of the Task Force. John has the distinction of being the first Korean American Chief Prosecutor in the United States. Our third guest, J. Charles (“Charlie”) Smith III, is the State’s Attorney for Frederick County, Maryland, and is the longest serving State’s Attorney in Maryland. Charlie is also a member of the ABA Taskforce on Prosecutorial Independence, as well as the Chair of the Board at the National District Attorneys Association.” Listen here.
#3 Judge Acknowledges Ethics Rules Banned Speech at “Politically Affiliated Club.” From Reuters: “A federal judge has acknowledged he violated judicial ethics rules by speaking before an unnamed ‘politically affiliated club’ and has taken steps to ensure the presentations he gave were removed from the group's YouTube channel. Chief U.S. Circuit Judge Jerome Holmes of the Denver-based 10th U.S. Circuit Court of Appeals did not identify the district court judge or club at issue in a June 4 decision, made public in the last week dismissing a judicial misconduct complaint filed against the judge.” Read more here.
#4 Fees Awarded to Judicial Watch in Fani Willis Open Records Case. From Newsweek: “The conservative group Judicial Watch announced on Tuesday that a Georgia judge ruled Fulton County District Attorney Fani Willis must cover about $20,000 in fees related to an open records case. … The order stems from an open records case in which Judicial Watch asked Willis' office to hand over any documents that would show potential communications with Department of Justice Special Counsel Jack Smith, who has led a separate probe into Trump's actions surrounding the 2020 election. Superior Court of Fulton County Judge Robert McBurney wrote in a January 3 order that Willis' office violated the open records request by identifying responsive documents and categorizing them as exempt, but earlier saying no such documents existed. ‘Even if the records prove to be just that—exempt from disclosure for sound public policy reasons—this late revelation is a patent violation of the ORA. And for none of this is there any justification, substantial or otherwise: no one searched until prodded by civil litigation,’ he wrote.” Read more here.
#5 Ethics Issues Facing Lawyers in the New Administration. From John Bolton (former US National Security Advisor to President Trump) in the New York Times: “Now Mr. Trump is selecting key personnel for his second term. Although the prospective appointees vary in philosophy, competence and character, one requirement for them is unfortunately consistent: the likelihood that they will carry out Mr. Trump’s orders blind to norms and standards underlying effective governance or perhaps even to legality. If he orders that his choice for attorney general, Pam Bondi, prosecute Liz Cheney for potential subornation of perjury before the House’s Jan. 6 committee, what will Ms. Bondi do? She could say there is no prohibition on members of Congress encouraging witnesses to tell the truth in legislative hearings and no evidence that Cassidy Hutchinson or other witnesses perjured themselves. Or Ms. Bondi could instruct his pick for deputy attorney general, Todd Blanche, who represented Mr. Trump in several criminal cases, to investigate not only Ms. Cheney but also Ms. Hutchinson and other witnesses. Mr. Blanche would be an interesting test case. He is a former federal prosecutor. He knows the rules. Would he uncritically follow Ms. Bondi’s order, at the risk of his legal ethics and possible disciplinary action from the bar association? If Mr. Blanche passed the order down to the assistant attorney general for the criminal or national security division or directly to the U.S. attorney for the District of Columbia, what then? And once it was presented to career trial attorneys, what would they do, with their own professionalism at stake?” Read more here (gift link).
#6 “Maine Supreme Court Looks to Change Judicial Disciplinary Proceedings for Justices.” From Maine Public: “The state Supreme Court has proposed new rules for discipline proceedings for judges, but it is not clear when the rules could go into effect and if they will impact Supreme Court Justice Catherine Connors discipline case. Currently, there are no specific rules for complaints against a Maine Supreme Court justice. … The proposed rules would instead create a panel of four Superior Court justices and Four District court judges to make a final decision on matters involving a Supreme Court justice. Dmitry Bam, a professor of law at the University of Maine School of Law, said the proposal isn't perfect, but a step in the right direction.” Read more here. For more background on the discipline charges against Justice Connors, see here.
#7 Discipline for Colorado Judges Over Financial Disclosures, Sort Of. From Colorado Politics: “In an unusually detailed and strongly worded report, Colorado's judicial discipline body made clear on Friday that dozens of judges broke the law by failing to file financial disclosure statements on time, but that not every instance merited discipline in light of related behavior from the nation's highest court. The Colorado Commission on Judicial Discipline disclosed it had admonished 27 judges, to some degree, out of 48 who did not properly submit their disclosures. The commission defended its decision not to impose public discipline on any judge based on the circumstances of each case, and cited reports of U.S. Supreme Court justices failing to report the entirety of their own personal finances.” Read more here.
#8 The President-elect’s Call to a Supreme Court Justice. From National Public Radio: “President-elect Donald Trump's phone call with Supreme Court Justice Samuel Alito on Tuesday is raising ethical concerns about communication protocols between the judicial and executive branches. But others view the call as normal and unlikely to shape the court's decision-making.” Read more (or listen) here.
#9 “Above The Law's Official 2024 Lawyer Of The Year Brought Meaningful Change To Chambers For Law Clerks.” For her work on judicial ethics reform, in particular the working conditions for law clerks, Aliza Shatzman (Legal Accountability Project) was named “Lawyer of the Year” by Above the Law: “Shatzman can add our Lawyer of the Year title to her collection of awards from various legal organizations for bringing meaningful change to chambers for law clerks. In what seemed like a Herculean task, she made a great deal of progress for federal law clerks this year. After what required a lot of blood, sweat, and tears, Shatzman launched the Centralized Clerkships Database, essentially a ‘Glassdoor for Judges,’ a tool meant to empower clerkship applicants with much-needed transparency and inside information from former clerks about judicial work environments.” Read more here. (Full disclosure: I recently joined the Legal Accountability Project’s Advisory Board).
#10 New Leadership for the AALS Section on Professional Responsibility. The AALS Annual Meeting last week marked a transition in leadership for the Section on Professional Responsibility. Special thanks to Ben Edwards (UNLV) for his service as chair, and congratulations to Jon Lee (Oklahoma) who is the new chair as well as Sarah Cravens (Arkansas - Fayetteville) who is the new chair-elect. (Having previously served as chair I know how much work goes into this service role - so thank you Ben, Jon, and Sarah for stepping up!) The new Executive Committee Members include yours truly along with Megan Bess (U of Illinois-Chicago), Daniel Bousquet (Arkansas - Fayetteville), John Cook (Arkansas - Little Rock), Seth Endo (Seattle), Marsha Griggs (St. Louis), Sam Levine (Touro), Ashley London (Duquesne), Rana Lehr-Lehnardt (UMKC), Jonah Perlin (Georgetown), and Becky Roiphe (New York).
Where’s the Rest of the Roundup?
Revisit the “Welcome Back Edition” for an explanation of the new format. And keep an eye out for next month’s “First Monday Edition.”
Get Hired
Did you miss the 100+ job postings from previous weeks? Find them all here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all 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.
Teaching Professional Responsibility or Legal Ethics? Check out the companion page for my casebook Professional Responsibility: A Contemporary Approach for teaching resources.