LER No. 24 - UPL, Plagiarism, Recusal, Judicial Power, Lawyer/Judge of Week, Ethics History, Accountability in Democracy, Reading Rec's, Trivia, Jobs, Events & More (1.08.24)
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
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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This week I’m in recovery-mode after two weeks of travel. I spent the new year holiday in Portugal with family. We visited Roman ruins dating back to the 1st century in Évora, and toured Lisbon learning about the Carnation Revolution (April 1974) which marked the end of 40+ years of dictatorship in Portugal and the start of the nation’s transition to democratic government.
Last week, I also attended the Association of American Law Schools (AALS) Annual Meeting in Washington DC. For those unfamiliar, hundreds of law school faculty and administrators convene to discuss every possible law-related topic you can imagine. I was happy to catch up with colleagues and friends, including Dean April Barton (Duquesne University) who presented the Deborah L. Rhode Award to me, an honor given to a “trailblazer in legal education and the legal profession.”
It was a bittersweet moment. As I said in my remarks: “It is an impossible endeavor to appropriately capture what it means to have received an award honoring an icon of the intellectual fields in which I strive to make a meaningful contribution who, over the years and especially in that last year, became one of my best friends.” (Here’s a link to my full speech if you want to learn more about that friendship, including what happened when Deborah got stuck in a Nordstrom fitting room on a shopping excursion for skinny jeans with me and nearly missed delivering an important speech at an AALS meeting several years ago! For even more, read my speech from her memorial at Stanford Law School in 2021.) It was an honor to be recognized alongside co-recipient of the Rhode Award Penelope Andrews (New York Law School) and recipients of the Michael Olivas Award for Leadership in Diversity and Mentoring Angela Onwuachi-Willig (Boston University) and Michael Pinard (University of Maryland).
It also was fun to find Law Democratized: A Blueprint for Solving the Justice Crisis on display in the AALS exhibition hall. (It hits the shelves officially TOMORROW!!)
I love January and the start of the new year because it reminds us to both reflect and prepare. If you missed the first Roundup of 2024, head over to Roundup No. 23 for a reflection on the top ten legal ethics stories of 2023.
A friend challenged me to pick a “word of the year” for 2024. The purpose, she explained, is to intentionally guide and align our decisions in the energy of who we want to become. I’ve been pondering the changes in my life over recent months with my son in his first year of college at the University of Michigan and my daughter who started driving in November. (Now you know where I’m finding the time to write this Roundup for you each week. I’m no longer the carpool driver!) Their transition to greater independence, for me, is a mashup of celebration and ‘empty nest’ grief. The upshot? I’m freer to take on additional pursuits and responsibilities. So, my word for 2024 is CREATE, and I’m opening myself up to new opportunities. What’s your word?
Now, onto the Roundup…
Highlights from Last Week - Top Ten Headlines
#1 Looking Ahead—Get Ready! From Law360: “What To Watch For In Legal Ethics In 2024.” Read here.
#2 Another UPL Challenge Filed. From the Carolina Journal: “A lawsuit filed Jan. 4 in the Eastern District of North Carolina seeks to free up regulations surrounding legal advice in the state. The lawsuit — filed jointly by the NC Justice for All Project and the Institute for Justice — seeks to allow non-lawyers to provide limited legal advice on subjects such as domestic violence, evictions, restraining orders, uncontested divorces, and child custody. The advice would be provided either free or at a substantial discount over what an attorney typically charges. Under current NC laws, non-attorneys are prohibited from such activity, which is called unauthorized practice of law and punishable by up to 120 days in jail.” Read more here.
#3 Plagiarism Allegations Resurface for Gorsuch. From Newsweek: “After Harvard University President Claudine Gay's career came under the spotlight, forcing her resignation after a series of plagiarism allegations, some are calling for U.S. Supreme Court Justice Neil Gorsuch to face similar scrutiny.” Read more here. (You might recall that similar questions were raised about his writing during his confirmation process.)
#4 Calls for Thomas Recusal Continue. From CNN: “A group of House Democrats is demanding Justice Clarence Thomas recuse himself from a case stemming from the Colorado ruling disqualifying Donald Trump from holding office, citing past efforts by Thomas’ wife to reverse the 2020 election results.” Read more here.
#5 MI Election Challenge Attorneys Resist Discipline. From Law360: “Attorneys accused of misconduct for their federal lawsuit challenging 2020 election results in Michigan pushed back on a disciplinary board’s decision not to toss proceedings, arguing the grievance administrator applied incorrect professional standards and inappropriately targeted out-of-state attorneys.” Read more here.
#6 Must-See TV in Britain on Prosecutorial Misconduct. ITV released Mr. Bates vs. The Post Office, a four-part British television drama series, on January 1. The show covers the British Post Office scandal, where hundreds of postmasters were wrongly prosecuted. You can only watch it while in the UK, though I am hoping for a wider release. In the meantime, check out Richard Moorhead’s excellent coverage of the lawyering and ethics issues raised in the televisions show and the actual case upon which it is based.
#7 Judge Violently Attacked in Court. From NPR: “A courtroom proceeding took a violent turn when a man attacked a Las Vegas judge on Wednesday morning. Video shows when 30-year-old defendant Deobra Redden runs and leaps toward Judge Mary Kay Holthus as she tries to scramble away. Holthus was about to announce Redden's sentence in a felony battery case. The judge was injured but not hospitalized. A marshal who intervened was hospitalized but remains in stable condition. Video of the physical assault has been viewed nearly 70 million times on social media and is disturbing.” Read more here.
#8 Resigned Judge Wants Immunity. From Bloomberg Law: “The Houston bankruptcy judge who resigned after failing to disclose a romance with a lawyer moved to dismiss a lawsuit that accused him of violating a shareholder’s civil rights. David R. Jones argued in court papers filed Dec. 28 that he’s entitled to judicial immunity because the actions at issue in the lawsuit were taken as part of his official duties as a judge.” Read more here.
#9 Supreme Court of Israel Strikes Down Law Curbing its Power. From the Wall Street Journal: “Israel’s highest court has struck down a controversial judicial overhaul law enacted last year by the government of Prime Minister Benjamin Netanyahu that would have limited the justices’ power.” Read more here.
#10 Girardi Trial Will Proceed. From NBC News: “Disgraced Los Angeles celebrity lawyer Tom Girardi has been found competent to stand trial on charges that he stole more than $15 million from his clients. A federal judge filed a notice of the brief order Tuesday under seal. Lawyers for both sides were given five days to identify any information in it that they would like the judge to keep confidential. Girardi, 84, is the estranged husband of ‘The Real Housewives of Beverly Hills’ star Erika Jayne. Girardi pleaded not guilty in Los Angeles last year to wire fraud on charges that he embezzled from clients, including an Arizona widow whose husband was killed in a boat accident; a Los Angeles couple injured in a car wreck that paralyzed their son; and a man who was severely burned in the 2010 San Bruno gas pipeline explosion.” Read more here.
This Week in Ethics History
January 9, 1983. New York Times reporter Stuart Taylor, Jr., exposed the involvement of law firm Singer Hutner in one of the largest frauds in US history involving O.P.M. (aka ‘Other People’s Money’). Read his piece “Ethics and the Law: A Case History” here.
January 13, 1808. The nation’s sixth Chief Justice of the US Supreme Court, Salmon P. Chase, was born. As a lawyer, Chase frequently defended fugitive slaves and one of his first acts as Chief Justice was the admission of John Rock as the first African-American attorney to join the Supreme Court Bar.
Recommended Reading — Recent Scholarship
This week’s recommendations are recommendations themselves.
“Book Review, Joan Howarth, Shaping the Bar: The Future of Attorney Licensing,” Journal of Legal Education (2023) by Marcia Griggs (St. Louis University) and Andrea Anne Curcio (Georgia State University). From the abstract:
In Shaping the Bar: The Future of Attorney Licensing, Professor Joan Howarth issues a clarion call to the academy, the legal community, and the judiciary to reform how we license lawyers in the United States. In this book Howarth identifies the current crisis in law licensing, the history of racism that created this crisis, and the tools available to address it. Shaping the Bar challenges our entrenched notions of professional identity, and it forces us to confront vulnerabilities in attorney self-regulation. It does so in a manner that will stir even those not immersed in the current debate about law licensing. This review highlights Howarth’s explanation of how the attorney licensing system fails to protect the public by failing to assess the skills and abilities new lawyers need to competently represent clients while simultaneously unjustifiably excluding people of color and those without financial resources. The review summarizes her data-based arguments that explain how we have developed and perpetuated a system that fails the public and systematically disadvantages particular groups, and her eminently workable suggestions for how to change the system. It discusses how Howarth connects the law licensing process to legal education, highlighting the symbiotic relationship between the two, and noting that as legal educators, we must accept responsibility for our part in creating, and hopefully now dismantling, this system.
“The Making of Lawyers’ Careers,” by Eli Wald (University of Denver) in JOTWELL, reviewing the book The Making of Lawyers’ Careers: Inequality and Opportunity in the American Legal Profession by Robert L. Nelson, Ronit Dinovitzer, Bryant G. Garth, Joyce S. Sterling, David B. Wilkins, Meghan Dawe, and Ethan Michelson. Here’s an overview:
After the JD (AJD), is a national longitudinal study of legal careers in the United States, which tracked the professional lives of more than 4,500 lawyers during their first twenty years after graduating in 2000 and passing the bar exam. The first wave of interviews was done in 2002-3; the second wave in 2007; and the third wave in 2012-13. Subsequently, employment data for respondents has been updated through web searches through 2019. Some of AJD’s key findings are that female attorneys in every racial and ethnic group report higher levels of discrimination than their male counterparts; and attorneys of color, white women, and LGBTQ+ attorneys perceive high levels of workplace bias compared to white male attorneys and to respondents in other workplace studies.
Over the years, AJD researchers have published numerous articles reporting and discussing the study’s findings. Now, The Making of Lawyers’ Careers collects some of the study’s main findings. The book is organized in four parts: The Structure of Lawyers’ Careers, which revisits and explores the reality of lawyers in the United States clustering in individual and corporate “hemispheres” of practice; The Narratives of Lawyers’ Careers, which tells the stories of law firm, solo, in-house and government lawyers; Inequalities of Race and Gender, which investigates inequalities in the practice of law; and Public Roles and Private Lives, which studies public service, pro bono and lawyers’ satisfaction.
The Making of Lawyers’ Careers is essential reading for lawyers, law students, and anyone interested in the practice of law, lawyers’ careers, and the impact of law and lawyers on American culture and politics. Every chapter is a gem.
Read more from JOTWELL here.
Lawyer(s) of the Week
Jonah Perlin brings us our lawyers of the week in the final episode of his How I Lawyer Podcast for 2023, featuring Eli Albrecht and Jordana Confino in conversation about positive lawyering in the practice of law. From the podcast description:
Eli is a partner at SMB Law Group LLP where he represents buyers and sellers of businesses and specializes in representing private equity groups. After graduating from Georgetown University Law Center, Eli worked as a mergers and acquisition Associate at DLA Piper and at Gibson, Dunn & Crutcher LLP. In addition to his day job, Eli writes about his own path in the legal profession primarily on LinkedIn where he focuses on balancing life as a private equity lawyer, husband, and LawDad in a way that is “fully integrated.”
Jordana is a lawyer and expert on positive lawyering. She previously served as the Inaugural Dean of Professionalism at Fordham Law where she remains an adjunct professor. Jordana was voted Fordham Law Adjunct Professor of the Year in 2021 for her class on Positive Lawyering. In 2022, Jordana founded her own consulting and coaching business with the mission to advance the well-being of the legal profession.
The 59-minute podcast is well-worth your time. For their contributions to lawyer well-being by sharing their personal stories and experiences, Eli and Jordana are our lawyers of the week.
Judge(s) of the Week
From the New York Times: “Chief Justice John G. Roberts Jr. devoted his annual year-end report on the state of the federal judiciary, issued on Sunday, to the positive role that artificial intelligence can play in the legal system — and the threats it poses. His report did not address the Supreme Court’s rocky year, including its adoption of an ethics code that many said was toothless. Nor did he discuss the looming cases arising from former President Donald J. Trump’s criminal prosecutions and questions about his eligibility to hold office.” Read more here. Long story short, Roberts’ report was heavily critiqued more for what it didn’t say than for what it did. (See, for example, this post by Adam Ziegler.) Even so, as we wrap up 2023 and look to 2024, Chief Justice Roberts is our judge of the week for his year-end report.
Accountability in our Democracy
This part of the Roundup focuses on the legal profession’s accountability in our democracy. For a recap of past topics covered, head back to Roundup No. 21. As I explained there, starting in January, the Accountability in our Democracy section will feature nonprofit organizations working to improve lawyer and judicial ethics.
I submitted questions to founders and executive directors of more than a dozen organizations, and will be sharing what I learned from those who replied. Roundup No. 21 got you acquainted with their work and goals. (If you think I’m missing an organization from my list that should be added, please let me know!)
This week we are taking a deeper dive into Fix the Court. Here’s my exchange with founder and executive director Gabe Roth.
RKJ: What is the most important action that Congress could take immediately to address reforms proposed by your organization?
GR: Pass the Supreme Court Ethics, Recusal and Transparency Act (S. 359). The bill would require the justices to write and adopt a code of conduct; improve travel, gift and disclosure rules and recusal standards; and create a process for investigating misconduct at the Court. The bill passed the Senate Judiciary Committee this summer, and the next step would be bringing it to a vote on the Senate floor this fall.
RKJ: What is the most important action that state or local government body could take immediately to address reforms proposed by your organization?
GR: This is more of a long-term project, but if you look at the annual financial disclosure reports that state supreme court judges and even lower-court judges have to file across the country, you get very depressed very quickly. The level of detail in most states is very, very low, and merely trying to locate the disclosures can be extremely difficult. To do real oversight work, which is needed for every state’s judiciary, you need to know in real time if judges have conflicts of interest, and bare-bones disclosures are a major detriment to that work.RKJ: Please share one “success” in efforts to reform ethics and/or professional conduct rules governing lawyers and/or judges?
GR: After the Wall Street Journal published its investigation in 2021 that found 131 judges participated in 685 cases last decade despite a financial stake in one of the parties, Fix the Court worked with partners like Free Law Project and Project on Government Oversight to advocate for legislation that would ensure that the public had greater and near-contemporaneous access to judges’ financial disclosures and stock transaction reports. A bipartisan bill to do just that, called the Courthouse Ethics and Transparency Act, was signed into law in 2022.
RKJ: What’s the most influential book you’ve read, podcast you’ve heard, etc. that’s inspired you in your work?
GR: The Brethren by Bob Woodward and Scott Armstrong. Few other books humanize the justices in the way that this one does. I believe that the more we see the Court as an imperfect workplace and less like some extension of divinity, the better off we as a country are — and the closer we’ll come to building a more ethical institution that sees itself within our constitutional system, not above it.
Legal Ethics Trivia
From the Texas Center for Legal Ethics, here’s the question of the month: “Can lawyers departing a law firm to join another law firm take firm documents with them to the new firm?” Test yourself at this website where you can read a short hypothetical, select an answer, and see your results. (I got it right — phew!)
Get Hired
Did you miss the 60+ job postings from previous weeks? Find them all here.
Conflicts Attorney, Dentons — Remote. Responsibilities include reviewing and providing thorough and timely analysis of all firm new business in order to identify legal and business conflicts of interest. Learn more here.
Corporate Counsel, Business Conduct and Ethics Investigations, Amazon — Arlington, VA. Responsibilities include monitoring, supervising, and independently conducting internal investigations involving potential legal and regulatory issues, including fraud allegations. Learn more here.
Lateral Conflicts Attorney, Paul Weiss — NYC. Responsibilities include reviewing conflicts questionnaires submitted by lawyer and staff candidates, and conducting thorough analysis on lateral matter lists to identify actual and potential conflicts of interest. Learn more here.
Supervisory Attorney Advisor (Ethics), US Department of Commerce, Office of the General Secretary — Washington DC. Responsibilities include performing legal analysis and research of extreme difficulty and complexity surrounding various issues related to standards of conduct, ethics laws and regulations. Learn more here.
Upcoming Ethics Events & Other Announcements
Did you miss an announcement from previous weeks? Find them all here.
Research on Women Leaving the Law. Are you a female-identifying, attorney (active or inactive) or former attorney who has either considered leaving or left a position, a legal practice, or the field of law? If so, please take a moment to complete this survey being conducted by Stacy Alexander, a Clinical Research Intern at F.I.R.E. Igniting Lives.
January 10 — US Supreme Court Argument in Smith v. Arizona. The question presented here is whether a prosecutor may use expert testimony about evidence not actually admitted with proper foundation. In this case, the evidence was testimony from an expert about a report prepared by a different crime lab analyst who no longer worked at the lab (and did not appear at trial). Read more about SCOTUS cases this term involving legal ethics issues at Bonus Content No. 3. Listen to the argument live here.
January 30 — LawDroid Inaugural AI Conference. This free event will help you “master the latest AI advancements that can revolutionize your legal practice.” Topics will include “the intricacies of AI policy to ensure your practice remains compliant and informed.” (H/T Tom Martin) Learn more and register here.
February 1-3 — Association of Professional Responsibility Lawyers Mid-Year Meeting. Register here.
February 7 — International Legal Ethics Conference Call for Papers Deadline. Submissions opened last week for the 10th biennial meeting of the International Legal Ethics Association, which will be held July 17-19, 2024, in Amsterdam. (I love this conference. It’s where I got my start as a legal ethics scholar, a wonderful community of academics and experts who care deeply about lawyer and judicial ethics. Full disclosure - I’m on the executive board.) More information here.
March 15 — Symposium on Ethics in the Judiciary and the Legal Profession: Are We in Crisis? Cardozo Law School is hosting this in-person event, which starts at 9AM and is open to the public. A disclaimer—I’m one of the invited speakers. The lineup is terrific and includes: Melissa Murray (NYU), Richard Painter (Minnesota), James Sample (Hofstra), Sung Hui Kim (UCLA), Rebecca Roiphe (New York Law), W. Bradley Wendel (Cornell), Ian Ayres (Yale), Deborah Pearlstein (Princeton), and Daniel Richman (Columbia). More information here.
March 26 — Jeffrey Clark Disbarment Hearing Begins. This trial will be live-streamed on YouTube, and is scheduled for March 26-29 and April 1-5. (It was previously set for January.)
Wisdom for the Week
“And the point is, to live everything. Live the questions now. Perhaps you will then gradually, without noticing it, live along some distant day into the answer.” ― Rainer Maria Rilke, Letters to a Young Poet (1929)
Want to catch up on the most-read editions of the Legal Ethics Roundup in 2023?
Here’s a list with links to the top five.
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 blog for my casebook Professional Responsibility: A Contemporary Approach for teaching ideas and other resources.
Want me to speak about my new book Law Democratized with your group or organization? Email my publicist Sydney Garcia at sydney.garcia@nyu.edu
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I wish you a wonderful week! See you next Monday.