LER No. 76 - A Gift of Time, DOJ Resignations Over Ethics, the SG as "Pamphleteer General," ABA Affirms Rule of Law, Philly "Wallpapered" in Lawyer Ads, Surviving February & More (02.17.25)
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.
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Last week once again delivered an overwhelming amount of news demonstrating how the ethics of lawyers and judges are at the heart of our democracy. If you’re feeling exhausted by all of it, you’re not alone. We’ve never seen anything like this.
It’s more important — and more time-consuming — than ever to stay engaged.
My goal for the Legal Ethics Roundup is to give you back time. I cull through the noise throughout the week so that in less than 10 minutes you can begin your Monday up-to-date and informed. So let’s jump right in. (And scroll to the end for a bonus on surviving February.)
Highlights from Last Week - Top Ten Headlines
#1 “A Rupture on the Right Over Prosecutors, Politics and the Rule of Law.” From Adam Liptak in the New York Times: “Speaking to U.S. attorneys in 1940, Attorney General Robert H. Jackson reflected on the enormous scope of prosecutorial power and the crucial importance of shielding it from politics. ‘The prosecutor has more control over life, liberty and reputation than any other person in America,’ Mr. Jackson, who would go on to be a Supreme Court justice of rare distinction, wrote in a text that is taught to law students and circulated to young lawyers. … Sharply differing interpretations of the classic 85-year-old speech, ‘The Federal Prosecutor,’ figured prominently in an extraordinary exchange of letters on Thursday that led to the resignation of Danielle R. Sassoon after she refused to carry out the Trump administration’s command to drop the corruption prosecution of New York City’s mayor, Eric Adams. Ms. Sassoon, whose resignation led to a cascade of others, cited Mr. Jackson’s speech to argue that the administration’s directive was not the product of a good-faith difference of opinion but an assault on the rule of law. She wrote that she could not ethically ask a judge to dismiss a case when she did not believe the law supported the move. … Ms. Sassoon’s interpretation of Mr. Jackson’s words is the conventional one, and it is a reflection of her credentials and place in the conservative legal community. A graduate of Harvard College and Yale Law School, she served as a law clerk to two leading conservative jurists, Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Va., and Justice Antonin Scalia.” Read more here (gift link).
#2 “Another Star U.S. Prosecutor Quits Over Eric Adams Case.” From the Wall Street Journal: “At least seven career prosecutors resigned in protest of [Emil] Bove’s instruction to drop the criminal case against Adams. The first was Danielle Sassoon, the acting U.S. attorney in Manhattan, who quit on Thursday. Five career Justice Department prosecutors followed suit after it became clear they were next in line to handle the request to dismiss the case. The seventh, Hagan Scotten, was one of the assistant U.S. attorneys in Manhattan assigned to prosecute the Adams case. Scotten said in his resignation letter that it was illegitimate for the Justice Department to order the dismissal of bribery charges as a way to induce the mayor to support the administration’s efforts to fight illegal immigration and violent crime. ‘Our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way,’ Scotten wrote to Bove. ‘If no other lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion,’ Scotten wrote. ‘But it was never going to be me.’ … Scotten was a clerk for Chief Justice John Roberts. He previously served three tours of duty in Iraq with the U.S. Army’s Special Forces and was awarded two Bronze Stars.” Read more here (gift link).
#3 Top Federal Prosecutor Faces Ethics Questions Over Switching Sides. Two headlines for #3. First, from NPR: “The top federal prosecutor in Washington D.C. has an unusual backstory. He has no prior experience prosecuting violations of the law. Instead, he has defended people accused of breaking it, after the Capitol riot on Jan. 6. Ed Martin advanced bogus claims about election fraud in swing states in 2020, and he spoke at a boisterous rally in Washington the day before the siege on the Capitol. … This week, seven House Democrats wrote the Justice Department watchdog, asking him to investigate Martin for possible ethics violations. They said after he joined the government, Martin moved to dismiss one Capitol rioter's case, while he was still listed on paperwork as the man's defense attorney.” Listen and read more here. Second, from Reuters: “President Donald Trump's top prosecutor in Washington is facing a complaint alleging he violated professional conduct rules when he asked a judge to dismiss criminal charges against his own client over his role in the U.S. Capitol riot.” Read more here.
#4 “ABA Reaffirms Support for Rule of Law Following Trump Executive Orders.” From the Jurist: “The American Bar Association (ABA) released a statement reaffirming its support for the rule of law Monday following a series of controversial executive orders from US President Donald Trump which critics say breach the constitutional separation of powers and violate due process.” Read more here.
#5 The Ethics of Lawyer Advertising. From Philadelphia Magazine: “Armed with multimillion-dollar marketing budgets, personal injury attorneys have wallpapered the city with ads, flooding billboards, bus stops, social media feeds, and airwaves with their shiny pitches. But at what cost?” Read more here.
#6 “Trump Allies Start Bullying Judges After Adverse Rulings.” From Bloomberg Law: “Top allies of President Donald Trump are attacking federal judges online, as many of the new administration’s policies have been initially blocked in court. … Adding to the tension between the branches is a Monday ruling by Chief US District Judge John J. McConnell, Jr. in Rhode Island, who said that the Trump administration wasn’t complying with his prior decision mandating officials to restore federal funds that were earlier frozen.” Read more here.
#7 “Defying Court Orders? Trump, Musk, Vance Appear to Lay the Groundwork.” From the Washington Post: “The inevitable clash has begun between President Donald Trump and the courts that would dare to stand in the way of his administration’s many legally dubious actions. As of Monday morning, at least 10 judges have issued rulings halting what the administration is doing and seeking to do. That’s 10 rulings in the 21 days since Trump was inaugurated — a staggering clip that reflects just how much Trump is disregarding federal statutes and legal precedent.” Read more here (gift link).
#8 On Reversing the Solicitor General’s Office Long-Held Legal Positions — Were the Predecessors “Bad Lawyers?” The SG is Not the “Pamphleteer General.” From the Washington Post: “During the 1980s, President Ronald Reagan’s solicitor general, Rex E. Lee, at times refused to embrace the administration’s policy positions in court, particularly involving religion and public life. ‘There has been a notion that my job is to press the Administration’s policies at every turn and announce true conservative principles through the pages of my briefs. It is not. I’m the Solicitor General, not the Pamphleteer General,’ Lee said in an interview after leaving the job. David Strauss, an assistant solicitor general during Lee’s tenure who teaches at the University of Chicago’s law school, drew a distinction between changes in court driven by a government agency revising its policies and reversals in the office’s long-held legal positions. … ‘That’s trickier,’ Strauss said of the latter, ‘because the law is the law, isn’t it? And now are you saying your predecessors were bad lawyers?’” Read more here (gift link).
Note: Headlines #9 and #10 are from late January and early February. I missed them when they first were published and want to make sure you don’t!
#9 “Accountant-Owned Law Firms Could Blur Ethical Lines.” From Seth Laver (Goldberg Segalla) in Law360: “In a novel move, Big Four accounting firm KPMG LLP has taken the first step in seeking to own and operate a law firm in the U.S. Although permitted in other countries, the U.S. generally prohibits nonlawyers from law firm ownership. In 2020, Utah and Arizona became the first states to relax that standard, thereby opening the possibility of what is apparently on the horizon. Online legal providers were the first to act, and now, accounting firms have entered the fold.” Read more here.
#10 “Firing of Jack Smith's Team Is a Threat to Rule of Law.” From Bruce Green (Fordham) and Rebecca Roiphe (NYLS) in Law360: “Acting Attorney General James McHenry recently fired the prosecutors who worked with special counsel Jack Smith on the federal criminal cases against President Donald Trump. … McHenry's assertion that the discharged prosecutors cannot be trusted to help implement the president's agenda rests on a fundamental mischaracterization of the legal profession and its norms. McHenry's premise is that the prosecutors' willingness to work on criminal cases against Trump signifies that they bear some animus toward his political views. But the professional norms belie this premise. Lawyers, including prosecutors, do not necessarily share their clients' values or embrace their clients' priorities — or, for that matter, bear ill will toward clients' opposing parties. Instead, lawyers are expected to put their own preferences and beliefs aside to help a client achieve the client's legal objectives in the representation. … Though some may believe that firing a handful of lawyers, with an accompanying memo, has little significance, it is in fact a true threat to the rule of law.” Read more here.
Bonus Headline: “Big-City Mayors In The New Trump Era: Quinton Lucas.” While not explicitly about legal ethics, the recent interview of Kansas City Mayor Quinton Lucas by David Lat at Original Jurisdiction is worth a listen, and not just because Lucas name-checks me. They cover his moves from law practice to law professor to mayor. You’ll learn a lot about how “Mayor Q” (aka the “Aldi-Brand Obama”) handles a range of ethical issues and political issues. From the podcast description:
The barrage of executive orders out of the White House can be hard to keep up with—and mayors of blue cities must decide which ones to fight, which ones to go along with, and which ones to try to change. So it’s an interesting—and challenging—time to be Mayor Quinton Lucas, the 55th mayor of Kansas City, Missouri. He’s having to navigate what all of Trump’s actions mean for the city he governs, one of the 40 largest in the country. And as a Democratic mayor in a Republican-dominated state, he has to deal with his state’s government as well—sometimes confrontationally, and sometimes cooperatively. As he goes about his work, “Mayor Q” draws upon his legal training and experience—as an Eighth Circuit clerk, practicing litigator, and law professor at the University of Kansas. And he’s ultimately optimistic about the future.
Listen here.
Surviving February
If you’re feeling like all your mornings are Mondays stuck in an endless February, here are some reading recommendations. I like to use February as a month to reflect and recharge. And now that you’ve saved some time by catching up on the headlines with the Legal Ethics Roundup, you might make time for these books, which were on my January reading list. Good Energy taught me about metabolic health and I discovered my pre-diabetic blood sugar levels mean I need to make some lifestyle changes. (I’m still eating my dark chocolate for breakfast, though!) The Five Types of Wealth reminded me of lessons I’ve learned in the past (like “the days are long but the years are short” - thanks to Gretchen Rubin) and inspired me to consider how I appreciate time. The War of Art reshaped my thinking about procrastination and purpose to confront resistance. And Intention Every Day is holding me accountable to a daily gratitude journaling practice. (Yes, LER readers, you are on my gratitude list!)
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” with reading recommendations, analysis, reforms watch, jobs, events, and much more.
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