Legal Ethics Forum

Schematic of Model Rules

If you teach PR and would like a copy of my slide deck with a schematic of the Model Rules, please shoot me an email at my work address. 

[email protected]

Here's the 13th and final slide of the deck:

The Loss of Deborah Rhode

I am devastated to share with you the tragic news that Stanford Law School Deborah Rhode passed away Friday. She has been a trusted friend, mentor, colleague, role model, sounding-board, and so much more to me and to many others. An extraordinary scholar and an inspiring leader, her loss is immeasurable to the field of legal ethics, gender studies, and leadership.

We honored her legacy at the final Professional Responsibility Section event at the AALS Annual Meeting yesterday, and I know there will be many opportunities to remember her going forward.

Here is information from her faculty bio page at Stanford:

Deborah L. Rhode is the Ernest W. McFarland Professor of Law and the Director of the Center on the Legal Profession. She graduated Phi Beta Kappa and summa cum laude from Yale College and received her JD from Yale Law School. She clerked for United States Supreme Court Justice Thurgood Marshall before joining the Stanford Law School faculty in 1979.

She is the founding chair of the Section on Leadership of the Association of American Law Schools and was the founding president of the International Association of Legal Ethics, a former president of the Association of American Law Schools, a former chair of the American Bar Association’s Commission on Women in the Profession, a former founding director of Stanford’s Center on Ethics, a former director of Stanford’s Institute of Research on Women and Gender, a former director of Stanford’s Program on Social Entrepreneurship, and a former trustee of Yale University. She worked as counsel to the House of Representatives’ Judiciary Committee during the impeachment proceedings against President Bill Clinton.

She is the nation’s most frequently cited scholar on legal ethics. She is the author of 30 books in the fields of professional responsibility, leadership, and gender, law and public policy. She has received the American Bar Association’s Michael Franck award for contributions to the field of professional responsibility; the American Bar Foundation’s W. M. Keck Foundation Award for distinguished scholarship on legal ethics, the American Foundation’s Distinguished Scholar award, the American Bar Association’s Pro Bono Publico Award for her work on expanding public service opportunities in law schools, and the White House’s Champion of Change award for a lifetime’s work in increasing access to justice.

 

Association of American Law Schools Annual Meeting Professional Responsibility Section Events Today

The final PR Section event happens today, starting at 4:15 Eastern. These papers are both terrific—hope you will join us!

Section on Professional Responsibility: Works In Progress Workshop

This workshop pairs two scholars with two more senior scholars to comment on and discuss promising works in progress. The first article is entitled "Future-Proofing Against the Inevitability of Intrusive Lawyer Marketing" and is written by Seth Katsuya Endo, Assistant Professor, University of Florida Fredric G. Levin College of Law. It will be commented on by Rebecca Aviel, Professor and Associate Dean for Faculty Scholarship, University of Denver Sturm College of Law. The second article is entitled "The Color of Leadership in Public Interest Law" and is written by Atinuke (Tinu) Adediran, David and Pamela Donohue Assistant Professor, Boston College Law School. It will be commented on by Elizabeth Chambliss, Henry Harman Edens Professor of Law and Director of the NMRS Center on Professionalism, University of South Carolina School of Law. The panel will be moderated by Benjamin Edwards, Associate Professor of Law University of Nevada, Las Vegas, William S. Boyd School of Law.

Association of American Law Schools Annual Meeting Professional Responsibility Section Events Today

Attending AALS? Today is jam-packed with excellent sessions, including the PR Section's Main Program:

2:45-4PM Eastern Section on Professional Responsibility Main Program: Legal and Judicial Ethics in the Post-#MeToo World

In 2016, the ABA amended Model Rule 8.4(g) clarifying that professional misconduct includes sexual harassment and discrimination, though few jurisdictions adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to address sexual misconduct, but some argue the reforms do not go far enough. Headlines regularly feature attorneys and judges involved in sexual misconduct, whether as bystanders, facilitators, or perpetrators. Panelists will discuss ethics as a means to address these issues. Jaime Santos, founder of Law Clerks for Workplace Accountability, will speak along with presenters selected from a competitive call for papers.

• Moderator Renee Knake Jefferson Joanne and Larry Doherty Chair in Legal Ethics, Professor of Law University of Houston Law Center
• Speaker Call for Papers Susan S. Fortney Professor of Law; Director, Program for the Advancement of Legal Ethics Texas A&M University School of Law
• Speaker Call for Papers Jon J. Lee Professor of Practice University of Minnesota Law School
• Speaker Call for Papers Samuel J. Levine Dir., Jewish Law Institute and Professor of Law Touro College, Jacob D. Fuchsberg Law Center
• Speaker Jaime Santos, Partner Goodwin Procter

Other events of interest happening today include:

• Thursday 1/7 11-12:15PM Eastern Section on Leadership, Co-Sponsored by Professional Responsibility and Pro Bono & Public Service Opportunities: Never Let A Good Crisis Go To Waste; The Pedagogy of Leadership During Crisis—Student Engagement

• Thursday 1/7 1:15-2:30PM Eastern Hot Topic Program: Breaking News in U.S. Legal Regulatory Reform Was 2020 the year that changed the practice of law forever? This panel of experts in legal regulatory reform will discuss recent and upcoming changes in legal services regulation, including: The relationship between regulatory reform and access to justice; the status of regulatory reform efforts around the country and the driving forces of these changes; what we can we learn from legal regulation in other countries; the status of evaluation efforts; an update on efforts to eliminate the bar exam as a barrier to entry for the legal profession; and what these changes mean for the future of legal education.

• Thursday 1/7 4:15-5:30PM Eastern Author Meets Reader Shortlisted: Women in the Shadows Of the Supreme Court—A Conversation with Justice Goodwin Liu 
  Join California Supreme Court Justice Goodwin Liu along with the authors of the book Shortlisted: Women in the Shadows of the Supreme Court, Renee Knake Jefferson and Hannah Brenner Johnson, to hear the untold story of nine women considered for the Court before Sandra Day O'Connor became the first female Justice. The discussion will include lessons learned from this extraordinary history that can be applied today to address enduring gender disparity in positions of leadership and power, as well as observations about recent appointments to the Court. NYU Press is offering book purchasers a 30% discount + free shipping with code shortlisted30 here.
  

Association of American Law Schools Annual Meeting Professional Responsibility Section Events Today

Greetings on Day One of AALS!

For those attending, hope you’ll make time today for the PR Section’s pedagogy program, which is new addition this year. Here’s the full description:

4:15-5:30PM Eastern. Section on Professional Responsibility: Bright Ideas and Best Practices for Online Teaching in Professional Responsibility Courses. This program features a panel of prominent professional responsibility scholars who will share bright ideas and best practices for teaching the topic online.

• Moderator Susan S. Fortney Professor of Law; Director, Program for the Advancement of Legal Ethics Texas A&M University School of Law
• Speaker Alberto Bernabe Professor UIC John Marshall Law School
• Speaker Susan D. Carle Professor of Law American University, Washington College of Law
• Peter Joy Henry Hitchcock Prof.; Vice Dean for Academic Affairs; Director, Criminal Justice Clinic Washington University in St. Louis School of Law
• Speaker Margaret C. Tarkington Professor of Law Indiana University Robert H. McKinney School of Law

Other events co-sponsored by our Section happening today include:

• 2:45-5PM Eastern Section on Litigation, Co-Sponsored by Professional Responsibility: The Growth of Third-Party Litigation Finance: Opportunities and Challenges

And then please be sure to save time Thursday afternoon for other events, especially for our Section Main Program, as well as our final event of the week, Saturday’s Works-in-Progress Session.

• Thursday 1/7 11-12:15PM Eastern Section on Leadership, Co-Sponsored by Professional Responsibility and Pro Bono & Public Service Opportunities: Never Let A Good Crisis Go To Waste; The Pedagogy of Leadership During Crisis—Student Engagement

• Thursday 1/7 1:15-2:30PM Eastern Hot Topic Program: Breaking News in U.S. Legal Regulatory Reform 

• Thursday 1/7 2:45-4PM Eastern Section on Professional Responsibility Main Program: Legal and Judicial Ethics in the Post-#MeToo World

• Thursday 1/7 4:15-5:30PM Eastern Author Meets Reader Shortlisted: Women in the Shadows Of the Supreme Court—A Conversation with Justice Goodwin Liu Special update: one of the women profiled in Shortlisted is Judge Joan Dempsey Klein, who passed away on December 24, 2020, at the age of 96. This session will now include a tribute to her in addition to the discussion planned.

• Saturday 1/9 4:15-5:30PM Eastern Section on Professional Responsibility: Works-In-Progress Workshop

To join the conference, you need to have already registered at AALS.org, then create a profile for eventpower.com via the personalized link sent by email in order to access the main event website: https://event-app.eventpower.com/event_app/user/login/21AALS If you have problems, this contact is great for help: [email protected]

What It Means (for Lawyers) to be Human

In his important new book, What It Means to Be Human, Carter Snead critiques expressive individualism through the lens of our embodiment and mutual dependence.  He focuses on issues of bioethics – abortion, assisted reproduction, and end-of-life concerns – and explains how “the virtues of acknowledged dependence” might be a corrective to the paradigm of the self-determining and self-sufficient individual. 

Snead looks to parenthood as the most powerful example of practices that “draw one’s gaze from inside toward the outside,” or as Michael Sandel described parenthood, as a “school of humility.”  Underscoring the “radical reorientation of one’s perspective as a parent,” Snead cites Steven Spielberg:

At the conclusion of his film Close Encounters of the Third Kind, Steven Spielberg’s protagonist leaves his family to join the aliens on their spacecraft to pursue his lifelong dream and obsession. In a documentary on the making of the film, Spielberg observed that he wrote this ending before he became a parent and “would never have made Close Encounters the way I made it in ’77, because I have a family that I would never leave.”

How does “acknowledged dependence” shape our understanding of the lawyer’s role?  Do we approach clients as pre-parenthood Spielbergs? Under the traditional view, the lawyer serves the client’s legal interests and suspends her own moral judgment regarding the client’s underlying goals.  Expressive individualism may find no stronger champion than Lord Brougham, for example, who famously remarked to the House of Lords in 1820 that an advocate “knows but one person in all the world, and that person is his client,” and that “to save that client by all means and expedients, and at all hazards and costs to other persons . . . is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”

Today there is no shortage of examples of lawyers defining their clients’ interests as though they are self-defining, self-sufficient, fully autonomous beings.  From Enron’s counsel, to lawyers defending the Church from sexual abuse suits, to the Trump campaign’s lawyers lobbing wild accusations about conspiracies to steal the election, the profession could benefit from an immersion in the work of Sandel, Alasdair MacIntyre, Charles Taylor, and Snead.

Not that the work of translation hasn’t been going on.  Tom Shaffer, most notably, spent decades bringing the insights of an authentic anthropology to legal ethics conversations, as has David Luban, among others.  But it’s still an uphill climb.  In public bioethics debates, we fear any curtailment of expressive individualism, and in legal ethics, that fear is magnified because the lawyer is the agent, not the principal.  So we make assumptions about the client’s stance toward the broader world without ever unpacking those assumptions or inviting the client’s reflection on their substance.  Perhaps the client will jump aboard the expressive individualism train wholeheartedly, in which case the attorney must either come along for the ride or resign.  But it’s a conversation worth having. 

Facing the fact of our mutual dependence matters well beyond our debates over bioethics, and Carter Snead has provided a very important nudge to reflect on the assumptions that shape legal practice. 

Questions have consequences, too.

Living in San Diego, when I ride my motorcycle in the hills near the border I sometimes encounter ICE roadblocks. Once I was asked where I was born. I said, "Oakland, California." Oddly enough, that satisfied the officers, and they sent me on my way. According to Professor John Eastman of Chapman, however, the ICE officers really should have asked me whether my parents had been here on student visas when I was born. Otherwise my status would be in doubt. Fortunately for me, common sense, white skin, and gray hair did the trick.

Professor Eastman has penned a good example of scholarship that nominally poses questions for Senator Kamala Harris, who was born in the same town and the same year as me (but who is otherwise far more accomplished in every dimension). Foreseeably, and inevitably, these questions do much more. They are not a contribution to an arcane debate, as Newsweek disingenuously asserts. In the marketplace of ideas, they will be translated as a set of talking points that, even if well meant, will be used to advance bigotry.

Formally the piece claims to be about the original understanding of the phrase " born . . . in the United States and subject to the jurisdiction thereof."  Professor Eastman wonders whether Senator Harris meets this standard, because her parents may not have been permanent residents when she was born. But the piece is not really about the meaning of "jurisdiction." Professor Eastman identifies no aspect of United States jurisdiction to which Senator Harris's parents were not subject. They were not foreign diplomats, for example, nor does he assert that they could not be arrested or sued, did not have to pay taxes, and so on.

Instead, Professor Eastman trades the legal concept of "jurisdiction" for the political concept of "loyalty." He posits that if Senator Harris's parents were not permanent residents then, "derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers." He then claims that "concerns about divided allegiance that led our nation's Founders to include the "natural-born citizen" requirement for the office of president and commander-in-chief remain important," citing Russian and Chinese meddling in our elections.

Broken down, the piece asserts: (i) that an infant has political loyalties; (ii) that those loyalties are the same as the parents' loyalties; and (iii) and that only permanent resident immigrants could be loyal to the United States. All three propositions are errant nonsense. Worse still is Professor Chapman's implied equation of Russian election hacking to being born in Oakland to immigrant parents. The equation is preposterous.

Depending on how one views the parameters of reasonable argument, there may or may not be what even Newsweek calls an "arcane" debate on the meaning of this text, but no one outside the echo chamber of originalism scholarship cares about it. And that arcane debate is not about current political loyalty, which is where Professor Eastman turns it to give it bite. In the real world of political debate these questions and their premises will be converted to assertions: Senator Harris is disloyal because her parents were immigrants. And that non sequitur will get a lot more traction because she is Black than it would if she were white. 

Newsweek's self-justification is intellectually bankrupt simpering. (We are supposed to be impressed that one of the editors was a law clerk? Really?) It is either a disingenuous or an obtuse publication. If I advertised in it, I would pull my ads.

I take it as given that, personally, Professor Chapman is conservative, not racist. (One must not equate the two.) I expect he would prefer that Senator Harris not become Vice President, and that would be so even if she were white. Fair enough. But context matters, Senator Harris's race is an important element of this context, and framing attacks as questions does not eliminate that fact. This piece does not raise a "significant challenge to Harris' constitutional eligibility to the second-highest office in the land," as it asserts. It provides what amount to talking points that are likely to be used by others to advance bigotry. 

For shame.

Two terrific virtual events are taking place over the next couple of weeks related to Professional Responsibility scholarship and teaching. All are welcome!

July 30, AALS Section on Professional Responsibility Virtual Workshop Conference

Session 1: Cerebral? High-Achieving Women in the Legal Profession

Presenter: Milan Markovic (Professor of Law – Texas A&M University School of Law)

Commentator: Atinuke (Tinu) Adediran ( Assistant Professor of Law – Boston College Law School)

Time: Jul 30, 2020 09:00 AM PDT (US and Canada)

Join Zoom Meeting: https://us02web.zoom.us/j/86274468670

Session 2: Ethics in Pandemics: The Lawyer for the (Crisis) Situation

Presenter: Raymond H. Brescia (Professor of Law – Albany Law School)

Commentator: Leslie Levin (UConn School of Law)

Time: Jul 30, 2020 10:00 AM PDT (US and Canada)

Join Zoom Meeting: https://us02web.zoom.us/j/83257373923

Session 3: Unnatural Law: AI, Consciousness, Ethics, and Law

Presenter: Joshua Davis (Professor of Law – University of San Francisco School of Law) 

Commentator: Elysa Dishman, (Associate Professor of Law—Bingham Young University)

Time: Jul 30, 2020 11:00 AM PDT (US and Canada)

Join Zoom Meeting: https://us02web.zoom.us/j/83013099983

Session 4: Conditioning Settlement Offers on Waiver or Non-Payment of Contractual Attorney’s Fees 

Presenter: Russell Christopher (Professor of Law – University of Tulsa) 

Commentator: Seth Katsuya Endo (Assistant Professor of Law – University of Florida Levin School of Law)

Time: Jul 30, 2020 12:00 PDT (US and Canada)

Join Zoom Meeting: https://us02web.zoom.us/j/81419702558 

August 4, Webinar on Excellence in Teaching Professional Responsibility Online

The Program for the Advancement of Legal Ethics at Texas A&M University School of Law is hosting a webinar from 3-4PM Central to help you plan and consider best practices for teaching Professional Responsibility courses in the virtual environment. Presenters include:

• Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall Law School

• Susan Carle, Professor and Vice Dean, Washington College of Law at American University

• Ellen Murphy, Professor of Practice; Associate Dean for Strategic Initiatives, Wake Forest School of Law

• Margaret Tarkington, Professor of Law, Indiana University Robert H. McKinney School of Law

• Susan Saab Fortney, Professor of Law and Director, Program for the Advancement of Legal Ethics, Texas A&M School of Law

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the eleventh annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2020.  The prize will be awarded at the 2021 AALS Annual Meeting in San Francisco.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2020.

The Exposure Draft and Judicial Ethics

The Committee on Codes of Conduct has drafted a proposed advisory opinion regarding law-related organizations and has circulated the draft for comment by judges. The draft advises against membership in the Federalist Society or the American Constitution Society, but allows for participation in those organizations' events and is cautiously approving of membership in the ABA. The draft apparently leaked, and is now the subject of general comment. In the spirit of unsolicited advise, I suggest the draft not be made final. It is well-meant, but ill-judged.

Canon Four provides in relevant part that "a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below." The Canon further specifies that, subject to this general limitation, a " judge may participate in and serve as a member, officer, director, trustee, or nonlegal advisor of a nonprofit organization devoted to the law, the legal system, or the administration of justice." Canon Two imposes the related requirement that judges "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Draft cites other provisions, but these two do the heavy lifting. 

The draft's reasoning rests on presumed public perception. The committee believes that "[a] reasonable and informed public would view judges holding membership in these organizations to hold, advocate, and serve liberal or conservative interests." From this premise it is a short step to conclude that membership reflects partiality, contrary to Canon Four. Partiality in turn reduces confidence, contrary to Canon Two. This reasoning is sound as far as it goes, but it seems to me not to address three points that make the draft as a whole unwise.

First, the draft avoids analysis of causation. Do people join these groups because they have liberal or conservative beliefs or or do they have such beliefs because they join? Common sense and experience suggest it is the former; the draft reads as if it is the latter. No doubt being part of a group reinforces beliefs to some extent, but it is not as though Justice Gorsuch would think like Justice Breyer had he wandered into an ACS meeting first. Republican presidents will tend to nominate conservative judges, and Democratic presidents will tend to nominate more progressive judges, regardless of membership in these groups. 

Second, public perception is an unstable ground for such an opinion. The Federalist Society has had increasing notoriety in part because journalists who dislike its politics have tried to stir the pot of public opinion against it. Conservative media will stir the pot against ACS nominees if a different president does the nominating. It is poor logic and bad policy to let the success of an organization's opponents determine the acceptability of membership.

The Draft seeks to sidestep this problem by quoting statements from each organization's self-descriptions, which unsurprisingly may be read to say that the Federalist Society is conservative and the ACS is progressive. I doubt the general public spends much time reading such statements, however, and they have not changed much over time. What has changed most is the salience of the Federalist Society, and that change is largely the work of the present administration and its opponents. There is nothing wrong with progressive journalists taking a run at the Federalist Society, or vice versa for ACS, but success in hanging a frame on these groups is not a sound basis for policy. 

The Draft references Advisory Opinion 93, which opines that judges should avoid  law-related activities that benefit "a specific constituency." I don't think either conservatives or progressives are coherent enough groups to count as a constituency, much less a specific one. And the Federalist Society's ceaseless touting of "originalism," in all its incoherent variants, is in fact directed to a general method, not a specific constituency. The same would be true of a "living" Constitution, should the ACS choose that term. 

Public perception also seems to press against the Draft's distinction between membership and participation on panels or at events, which the Draft provisionally approves. The Draft opines that "speaking engagements or panel discussions do not necessarily indicate, nor could they be reasonably perceived as indicating, the endorsement of the organizations’ views or positions." Really? I suppose that's true if one is the liberal at a Federalist Society event, or vice versa for an ACS event, but I have to say, I think a well-covered speech is more likely to nudge public opinion than an anodyne website self-description.

Third, I think the draft is likely to be, as it already has been, counterproductive. The impulse to distance the judiciary from retail politics is noble, but these groups are the wrong targets. They are too general and diffuse in orientation. By targeting them the Draft throws gas on the embers it hopes to smother. The problem is not that membership in a group will never be problematic--no one is going to defend Klan membership as consistent with Canon Four.  The problem is that the ACS and the Federalist Society are not the rifle-shot constituencies that Advisory Opinion 93 spoke of. The Draft therefore seems to aim at intellectual dispositions and tendencies--at casts of mind--rather than at plausible judicial bias. 

Perhaps less importantly, the draft subtly reinforces the idea that politics defines a person, and by extension a person who is a judge. That does seem to be the way D.C. runs now. Everyone there seems too busy fundraising and flying back to their constituencies to grab a drink with someone across the isle and talk baseball, or kids, or whatever. Friendship and trust among political opponents seems out of style. And when I think of the judges I like, a Friendly, or Harlan (II), or even Justices Stewart or Powell, who are hard to categorize politically but who got to the heart of the matter, I don't see that they would fare well in the modern judge-picking environment. That's sad, and a real loss. 

All that may be an argument in favor of the draft, as an acknowledgment of modern political reality. Maybe the public thinks that way, but I still don't think that most courts work that way in most cases. And the public opinion on which the draft rests is not fixed. It can be influenced by, among other things, the draft itself. To the extent the committee is concerned with such effects, I think it better to curb the reductionist cast of mind the draft presumes rather than to seem to validate it.