LER No. 90 - 5 Justices Recuse Over Books, Lively/Baldoni PR Ethics, Jenner EO Struck, PW Lawyers Flee, JusticeCorps Defunded, TX Bans Hiring Out "In-House" Attys, Secret Recordings & More (05.26.25)
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
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Honoring Memorial Day
Today is Memorial Day. This federal holiday was established in 1868 to remember and pay tribute to those who lost their lives in service to the United States and their families. Take a moment to reflect, perhaps with a poem.
And now for your headlines.
Highlights from Last Week - Top Fifteen Headlines
#1 “Blake Lively, Justin Baldoni and the Court of Public Opinion.” From Reuters: “For lawyers, there’s a fine art to litigating in the press, of calibrating how to shape a public narrative without running afoul of ethics rules or antagonizing judges. It can be a thin line – and it’s being tested by counsel in bitter litigation between actor-director Justin Baldoni and his erstwhile ‘It Ends With Us’ co-star Blake Lively over allegations of sexual harassment, extortion and defamation. Both actors have strenuously denied wrongdoing. … Under the American Bar Association’s Model Rule 3.6, lawyers are obliged to refrain from out-of-court public statements that are likely to have ‘a substantial likelihood of materially prejudicing an adjudicative proceeding.’ But as legal ethics expert Bruce Green, a professor at Fordham University Law School, points out, it’s ‘not a gag order.’” Read more here.
#2 “Dem Senator Sees Revived Supreme Court Ethics Bill as an Exercise in Messaging.” From Courthouse News Service: “Rhode Island Senator Sheldon Whitehouse is trying his hand once again at a bill that would force the U.S. Supreme Court to adopt an enforceable code of ethical conduct in the public eye. But while the legislation may be a political nonstarter for Congress’ Republican majority, the Ocean State lawmaker said Tuesday that he was mainly interested in keeping Capitol Hill talking about ethical malfeasance at the high court.It’s the second time around for Whitehouse’s Supreme Court Ethics, Recusal and Transparency, or SCERT, Act — a measure which made inroads in the Senate during the Joe Biden administration but fizzled out thanks to staunch Republican opposition.” Read more here.
#3 “Five Supreme Court Justices Sit Out Case in Rare Move.” From Newsweek: “The U.S. Supreme Court affirmed a lower court's dismissal of a copyright lawsuit against writer Ta-Nehisi Coates on Monday after five justices recused themselves from hearing the appeal, leaving the court without a quorum. According to the order released on Monday, Justices Samuel Alito, Sonia Sotomayor, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson did not participate in considering the petition, effectively ending the case at the appellate level. … The incident marks the highest number of justices sitting out a Supreme Court case since the court adopted a formal code of conduct in 2023. With no quorum, the ruling of the lower appellate court, which rejected allegations that Coates plagiarized from Ralph W. Baker's book Shock Exchange, remains in force. The incident has put renewed focus on judicial ethics and financial conflicts of interest, an issue under public scrutiny following recent disclosures about justices' lucrative book deals and gifts.” Read more here.
#4 “The President’s Orders Targeting Law Firms as Unconstitutional Bills of Attainder—Damning Lessons from the Past.” An op-ed from Gary Simson (Mercer/Cornell) in Verdict: “The targeted firms that have challenged the orders in court have attacked them on a host of constitutional grounds—free speech, right to counsel, due process, equal protection, and more—but not as bills of attainder. The grounds the firms have cited make a formidable case for unconstitutionality, as Federal District Judge Beryl A. Howell very recently recognized in holding unconstitutional on several grounds the executive order targeting Perkins Coie LLP. A great deal may be lost, however, if the orders aren’t challenged as bills of attainder as well. A bill-of-attainder challenge uniquely captures what is so monstrous—so fundamentally and blatantly unconstitutional—about those orders and how very grave a danger they pose to the welfare of the people of the United States.” Read more here.
#5 Lawyer Malpractice Costs On the Rise, With Cyber and Attorney Oversight Among Top Concerns. From Businesswire: “Law firms throughout the U.S. must continue to navigate the challenges posed by malpractice litigation, including rising settlement costs and errors leading to claims, according to the fifteenth annual survey of Lawyers’ Professional Liability Claims conducted by Eileen Garczynski, Esq., Principal at EPIC Law Firm Group. The survey examined key trends driving law firm malpractice exposures and claims by polling 11 leading lawyers’ professional liability insurance companies that, on a combined basis, provide insurance to more than 80% of the AM Law 100 and NLJ 250 firms.Key findings of the survey include: The cost of defending malpractice claims continues to increase year over year. Ten of the 11 insurers surveyed reported that the rates they pay defense counsel increased last year. Among them, three saw rates increase by 5% to 10%, and seven noted increases of 2% to 5%.” Read more here.
#6 “‘AI Hallucination Cases,’ from Courts All Over the World.” From The Volokh Conspiracy: “From Damien Charlotin, 87 cases so far, mostly from the U.S. but also from Brazil, Canada, Israel, Italy, the Netherlands, South Africa, Spain, and the UK. I expect that there are many more out there that didn't make the list (especially since many state trial court decisions don't end up in computer-searchable databases, and I expect the same is true for other countries' courts). Note that the pace has been increasing: There are more than 22 listed (all but five from U.S. courts) over the last 30 days alone.” Read more here.
#7 “Some Want to Leave Law Firms with White House Agreements, and Others Avoid Firms That Pushed Back.” From the ABA Journal: “In April, the White House claimed it had entered deals with five law firms, the Wall Street Journal reported. Other law firms, including Perkins Coie, Jenner & Block and Susman Godfrey, challenged the executive orders in federal court. With the legal industry under attack, law firms risk damage to their business and reputation as well as attorney recruitment and retention if they stay silent, according to some legal observers. Others aren’t so sure and say some lawyers are avoiding law firms that entered White House agreements in addition to those that are fighting back.” Read more here.
#8 “Goldstein Assails 'Radical' DOJ Case, Probe Of 'Sexual Habits'.” From Law360: “In his most forceful attack on tax evasion charges that have roiled the U.S. Supreme Court bar, indicted appellate icon Thomas C. Goldstein is accusing the U.S. Department of Justice of embracing ‘breathtaking’ legal theories and revealing prurient information about him ‘to bias the grand jury.’ Goldstein's salvo late Friday in Maryland federal court spanned seven motions designed to torpedo much of a 22-count indictment accusing the former appellate advocate and SCOTUSblog publisher of unlawfully concealing income from high-stakes poker matches and of paying off gambling debts by siphoning cash from his firm, Goldstein & Russell PC, now known as Russell & Woofter LLC.” Read more here.
#9 “Law ≠ Power.” An op-ed from Rebecca Roiphe (New York Law School) in Persuasion: “Trump has declared war against the American legal system—and, for the most part, institutions have caved to him. Collectively, nine firms have agreed to donate almost a billion dollars in legal fees to the administration’s preferred causes. As heinous as Trump’s actions are, and without minimizing the severity of his attacks, it is important to acknowledge an uncomfortable truth—that legal institutions themselves bear a significant measure of blame. In the recent past, law schools and the profession as a whole have had an unfortunate tendency to portray the law as nothing more than an instrument of power. And the profession is now experiencing buyer’s remorse in seeing how similar that doctrine is to Trump’s vision. The core principle of the rule of law is that those in the legal profession act as a bulwark against oppression, as gatekeepers of a legal system that, while imperfect, divides rights and responsibilities fairly, treats litigants of all types equally, and holds powerful actors to account. But, in a timeline stretching back to—let’s say—the 1970s, law schools have instead focused on structural inequities.” Read more here.
#10 “Fla. Judge Resigns Amid Call For Removal Over 'Bigot' Remark.” From Law360: “A Florida judge who accused her opponent of antisemitism and bigotry said she will resign from the bench after the Florida Judicial Qualifications Commission ‘reluctantly, but of necessity’ recommend her removal. In a letter filed with the Florida Supreme Court on Friday, Judge Nancy L. Jacobs said she will resign from her role as a Hillsborough County circuit judge on May 31. The commission recommended her removal from the bench following a lengthy ethics case involving inappropriate comments about abortion amid an election campaign.” Read more here.
#11 “The ABA Standards and Regulatory Modesty.” From the David Yellen (Miami) in PrawfsBlawg: “I’d like to add a few thoughts to Dan Rodriguez’s recent posts about the accreditation work of the Council of the ABA Section on Legal Education. Like Dan, I have viewed calls for the replacement of the Council as law school accreditor as misguided. As Barry Currier argues compellingly, having a national ‘approver’ for bar licensing purposes is essential. Despite what I view as a very mixed record by the Council, I have no reason to think that a newly constituted entity would represent a significant improvement, to say nothing of the enormous transition costs involved. And I certainly have no confidence in the Trump Administration’s approach to accreditation ‘reform.’ That said, some of the Council’s recent actions makes defending it difficult. Derek Muller has explored some of the Council’s overreach. Most notably, the Council has sent out for notice and comment two proposals that, taken together, would represent the most radical intrusion into the operation of law schools that I can recall.” Read more here.
#12 “Trump's AmeriCorps Cuts Kill Legal Help Program at McLean County's Courthouse.” From WGLT.org: “The Trump administration’s dismantling of AmeriCorps has shut down a free legal assistance program at the McLean County courthouse that helped self-represented litigants navigate a wide range of court cases. Illinois JusticeCorps placed fellows and other helpers at courthouses in 17 locations around Illinois, including the Law and Justice Center in Bloomington for the past 12 years. JusticeCorps members helped self-represented litigants find and fill out the right forms and get procedural guidance. Divorce and family cases were about half of the work, one JusticeCorps official said. That all ended this week. Illinois JusticeCorps was shut down Monday after losing its federal funding, as part of the Trump administration’s broader unraveling of AmeriCorps. The agency canceled almost $400 million in grants on Friday. Illinois and other states have sued to stop it.” Read more here.
#13 “Texas Bar Bans Cos. From Hiring Out In-House Attys.” From the Law360: “For-profit companies in Texas can't provide legal services to customers, even if they offer those services on an ‘at cost’ basis, the State Bar of Texas has said.” Read more here. Read Opinion 707 here.
#14 “Why a Law Firm Secretly Recording Client Conversations Is Wrong.” From Kiplinger: “A law firm that has been recording client conversations without the clients' knowledge or permission and has threatened employees if they speak out faces legal and ethical challenges.” Read more here.
#15 “The State of the UK Legal Market in 2025: Law Firms’ Focus Shifting to Value, Efficiency & Productivity.” From Thomson Reuters: “Widespread macroeconomic uncertainty and rapid technological advancements are driving significant changes in the legal market in the United Kingdom in the early part of 2025. A new report from the Thomson Reuters Institute, State of the UK Legal Market 2025, provides a comprehensive analysis of these changes and offers valuable insights for UK law firms and corporate legal departments alike.” Read more here.
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