When a Justice’s Spouse Engages in Political Activity

Posted on Categories Legal Ethics, Legal Scholarship, U.S. Supreme Court1 Comment on When a Justice’s Spouse Engages in Political Activity

When Mrs. Virginia Thomas, wife of Supreme Court justice Clarence Thomas, launched a new non-profit organization called Liberty Central earlier this spring, the announcement prompted a firestorm of media coverage. The Los Angeles Times, Washington Post, and numerous other news outlets ran stories discussing the possible ethical issues that may arise. The stories focused on two particular questions: to what extent may the spouses of Supreme Court justices engage in political activity, and when may Justice Thomas’s recusal be necessary if a donor to Liberty Central comes before the Court? Legal ethics experts quoted in the news stories offered brief answers on both counts.

In a short paper recently posted to SSRN, I have endeavored to provide a comprehensive answer to both of these questions. The first conclusion was straightforward: the relevant codes of judicial conduct are limited by their texts to judges – they have no power over spouses. Moreover, numerous advisory opinions confirm the right of judicial spouses to engage in politics. However, a judge must clearly separate himself from the political activity of his spouse.  Judicial recusal is governed by a federal statute. Going through the statute, and the advisory opinions and precedents concerning it, the paper identifies the relevant standard and proposes a framework for evaluating cases that may arise in this circumstance. I conclude that Mrs. Thomas can fully pursue her new organization’s mission without compromising Justice Thomas’s role on the bench.

A Class of Ethical Considerations

Posted on Categories Legal Ethics1 Comment on A Class of Ethical Considerations

As a guest speaker in class today, Professor Grenig arranged for an appearance by Mr. Howard Myers, who has appeared before Professor Grenig in labor disputes and now himself serves as a mediator.  Myers spent the class period talking about the role of a lawyer and ethical considerations that lawyers confront on a daily basis.  While I understand that in a future semester I will take a class about ethics, it was very interesting to get a big-picture overview of some different ethical issues and suggestions from Myers.

First, Myers suggested that each of us find an area of law that we fit into and enjoy.  Continue reading “A Class of Ethical Considerations”

Does the ABA Do Good? (Part I)

Posted on Categories Legal Education, Legal Ethics, Legal HistoryLeave a comment» on Does the ABA Do Good? (Part I)

No. (This, however, is a polemic, and as such I am unfairly neglecting some of the fine work done by some ABA sections.) As a law student, I had an inchoate thought that the ABA could be a kind of strong mediating institution between the state and the individual that would make it beneficial to the public, not just a large lobbying organization protecting the business interests of lawyers. I had a woeful lack of knowledge of the quite sketchy history of the ABA. I thought the ABA could use its organizational heft to improve the quality of applicants to the profession, improve the ethical standards required of all lawyers, and advance the public profession of the law.

One issue of importance to the ABA during my formative years as a lawyer (and even now) was its role in the vetting process for federal court nominees. Having joined the legal profession in 1982, I was quite familiar with the burgeoning culture wars, including their cousin, the judicial appointment wars. I never thought much of the ABA’s efforts to control (or at least channel) judicial selection through its Committee on the Federal Judiciary, particularly after it couldn’t determine, based on its own “non-ideological” criteria, whether Robert Bork was highly qualified, qualified, or a hopeless disaster in the making. I don’t mind the ABA’s efforts to evaluate federal judicial nominees; what bothers me is that it claims to do so as an independent, neutral, unbiased expert.

But neither its history nor its tiresome efforts to wield an oddly refractive kind of political influence is what really bothers me. No, the ABA does harm because it can’t get it right on what should be its two most important areas of concern: legal ethics (this Part) and legal education (Part II).  Continue reading “Does the ABA Do Good? (Part I)”

Contract Rights Under Assault

Posted on Categories Business Regulation, Corporate Law, Legal Ethics, Negotiation, Political Processes & Rhetoric, President & Executive Branch7 Comments on Contract Rights Under Assault

Barack_Obama_pledges_help_for_small_businesses_3-16-09In 1789, as the inchoate American government was climbing out of the mountainous debt left over from the Revolutionary War, a thorny political problem emerged.  While most of the chattering class was consumed with the debate over whether the states’ war debt should be federalized, another far more visceral controversy arose.  Because the Continental Congress lacked funds during the war, the Revolution was funded partly by wealthy private citizens who invested in bonds.  As a result of the lack of governmental money, many American soldiers were given worthless IOUs at the end of the war, as states scampered for a way to give the patriots their back pay.  Many of these soldiers panicked, and sold their IOUs to speculators for as little as fifteen cents on the dollar.  The problem was, once the federal government began repaying the debt, the value of the bonds soared.  So who should get the money: the patriots who fought bravely for their country and only sold the IOUs because of fear they would get nothing from their government, or the speculators?

Continue reading “Contract Rights Under Assault”

Top Ten Changes in the Legal Profession Since 1979, Part II

Posted on Categories Legal Education, Legal Ethics, Legal Practice3 Comments on Top Ten Changes in the Legal Profession Since 1979, Part II

Scale_of_justiceThe first half of the Top Ten list was posted yesterday here.

6. The changing structure of law firms, including specialization.

Only a few law firms were “national” or “international” in any sense of the word in 1979. The most well known was Baker & McKenzie, the Chicago behemoth. If I recall correctly, Foley & Lardner had no office outside of Wisconsin (and maybe Milwaukee) in 1979. In 1985, ten Dallas law firms had 100 or more lawyers, but none was as large as the three largest Houston law firms. One of those Dallas firms was the Cleveland law firm of Jones, Day, Reavis & Pogue (now Jones Day), which came to Dallas in 1981, and which housed 122 lawyers by 1985. Jones Day’s “principal” office is now considered Washington, D.C., according to the National Law Journal, and it has 2,492 attorneys. Large law firms must be national in order to compete effectively for large corporate business (there may be a few New York-based exceptions to this rule, but just a few). Baker & McKenzie remains the largest law firm in the National Law Journal’s NLJ 250 with 3,949 lawyers in 2009, but five firms are larger than 2,000 lawyers, even after a bloodletting in which over 5,200 lawyers at the 250 largest firms were let go beginning in late 2008. The smallest of these 250 firms has 164 lawyers, a number that creates substantial fixed costs.

Firms this large are no longer partnerships in theory or fact.  Continue reading “Top Ten Changes in the Legal Profession Since 1979, Part II”

Top Ten Changes in the Legal Profession Since 1979, Part I

Posted on Categories Legal Education, Legal Ethics, Legal Practice3 Comments on Top Ten Changes in the Legal Profession Since 1979, Part I

Scale_of_justiceI was asked by Michael O’Hear to serve as the January guest blogger (blawger?), and thank him for this opportunity. I teach courses in Constitutional Law, Evidence, Professional Responsibility, and American Legal History at St. Mary’s University School of Law in San Antonio, Texas, where I began teaching in the Fall of 1987.  My website is at www.michaelariens.com. I started at Marquette Law School in the Fall of 1979.  Since I have little idea what might interest any audience, I decided to use the crutch of an-end-of-the-year (or in this case, beginning-of-the-year) Top Ten list. I’ve listed what I perceive as the ten most important changes in the American legal profession since I entered law school.

1. Increasing competition for business by firms engaged in the private practice of law.

No other change comes close to the impact created by the increased in competition for clients. Several of the other changes listed below are a direct or indirect result of the quest for business. Intensifying competition has altered the promotion-to-partner tournament played by associates; including a substantial lengthening of the years required to reach partnership; changed the calculation of both associate and partner pay (including the dreaded “eat what you kill” compensation method); led to changes in the organizational structure of law firms; increased the shady business of case runners in the personal injury field; and affected the rules of ethics, the mentoring system of recent law school graduates, and law school applications.

One reason why some newly-minted lawyers are paid $160,000 to work at a large law firm is because those lawyers will eventually earn the partners significant profits. It is also because those lawyers are unlikely to make partner at the firm where they start.  Continue reading “Top Ten Changes in the Legal Profession Since 1979, Part I”

Add Judges To The List of Professionals Who Must Take Care In Using Facebook

Posted on Categories Computer Law, Judges & Judicial Process, Legal Ethics6 Comments on Add Judges To The List of Professionals Who Must Take Care In Using Facebook

facebook-scales-2Professor Lisa Mazzie posted a blog entry back in September about the use of Facebook and other social networking websites by lawyers.  The post shed light on the trouble an attorney can face when the substance of his or her webpage falls short of professional standards.  As Professor Mazzie explained, postings that “criticize” judges, “reveal” client details, or “belie” statements made before a court can land an attorney in hot water.

Those facts should not surprise present and former Marquette students: we were presented with the professional dangers of social networking during new student orientation.

It likely was only a matter of time, but it seems that state ethics committees have turned their attention to the judiciary.  The Florida Judicial Ethics Advisory Committee released an opinion last month that, among other things, finds it inappropriate for a judge to “friend” lawyers on social networking sites when those lawyers may appear before that judge. Continue reading “Add Judges To The List of Professionals Who Must Take Care In Using Facebook”

What Is a Lie and Is It Constitutionally Protected?

Posted on Categories First Amendment, Legal Ethics, Wisconsin Supreme Court6 Comments on What Is a Lie and Is It Constitutionally Protected?

I think that the three judge panel’s decision to recommend dismissal of ethics charges against Justice Michael Gableman is the right outcome. I doubt that we really want tribunals passing upon the truth and falsity of campaign speech – even for judges.

There were differing approaches taken by the panel judges. Judges Snyder and Deininger found that the Gableman campaign’s ad criticizing Louis Butler for “finding a loophole” for a convicted rapist who went on to offend again was literally true, nohwithstanding that “the loophole” did not result in Butler’s client’s release and he offended again only after serving his sentence.  It was, they believed, a misleading ad but true because each sentence in the ad, taken in isolation, was literally true. Although the Judicial Code also addresses true, but misleading statements, its admonition against such statements is only aspirational and cannot form the basis for discipline.

Judge Fine, on the other hand, wants to take the statement as a whole and that has substantial intuitive appeal.  We don’t, in common discourse,  isolate a message’s individual words, phrases and sentences to discern its meaning.

He goes on, however, to find that the Code’s prohibition on knowingly false statements to be unconstitutional. But that finding  seems itself to be a function of his willingness to apply the language of that Code in a more expansive way.  Continue reading “What Is a Lie and Is It Constitutionally Protected?”

Legal Ethics Course Name

Posted on Categories Legal Education, Legal Ethics, Marquette Law School5 Comments on Legal Ethics Course Name

86px-US_Department_of_Justice_Scales_Of_Justice.svgThe October 2009 edition of the National Jurist magazine includes a statement from Jack Crittenden, the publication’s editor-in-chief, calling for law schools to begin teaching morality.  Citing the embarrassing role played by lawyers in the financial meltdown of 2008, Crittenden writes that “our law schools should be discussing the concepts of fairness and compassion in relation to the law and representing clients.” He further notes: “Today, it is the institutions of higher education that must carry forth the banners of morality, virtue and responsibility in order to keep America great. And law schools play a greater role in that responsibility than perhaps any other institution of higher learning.”

How to teach ethics and morality, or even if it is appropriate to do so, has been a much discussed topic in the legal academy, going back at least to the Watergate Crisis of the mid-1970’s.  One aspect of the debate has involved what to call the basic course in legal ethics and professional responsibility required of all law students.  Should the course be primarily about the formal rules governing lawyer conduct or should it focus on the ethical conduct of lawyers separate and apart from the rules that govern them?  Although course titles can be misleading, they often reflect the way that a particular institution has answered this question.

Marquette’s experience has reflected the uncertainty over the proper name for the course that used to be universally known as “legal ethics.”  While the course at Marquette traditionally was called “Legal Ethics” at some point that title was abandoned, and the over the past twenty years it has been known variously as “Professional Responsibility,” “Law and Ethics of Lawyering,” and the current “Law Governing Lawyers.”  At Marquette, the term “ethics” was in the course name, then it wasn’t, then it was brought back, albeit in a secondary position to “law,” and then it was dropped again.  Although the current course description refers to “ethical principles” they are listed as second to “legal principles,” and the course’s focus is described as primarily a “study of the principal ways in which lawyers are regulated.”

From 1997 to 2000, Marquette had a second required course on the legal profession, called “The Lawyer in American Society.”  Initially, the primary text for this course was American Legal Ethics by the noted ethical theorist Thomas Shaffer of the Notre Dame Law School.  Shaffer’s book was not about the Rules of Professional Conduct but about the moral consequences of becoming a lawyer.  After the first year, the Shaffer text was abandoned, although one section did replace it with another Shaffer book entitled, Lawyers, Clients, and Moral Responsibility. By the end of the second year of the four year experiment, the ethics focus of the class was largely abandoned.

Why does Marquette Law School, a branch of a Christian university, seemingly have such difficulty in holding itself out as a teacher of ethics and morality?   Why don’t we still call the course “Legal Ethics”?

I am not suggesting that individual professors do not raise questions of ethics and morality in their classes. I am certain that many do.  But at the level of course names, we seem to be reluctant to use words like “ethics” and “morality,” as our inability to settle on a permanent name for our required course on professional obligations suggests.

This phenomenon is not limited to Marquette.  As an experiment, I examined the web pages of 20 leading law schools to determine how each school deals with the question of what to call its basic course in professional obligation.

Of the twenty schools, only Notre Dame refers to the course simply as “Ethics,” but five others include the word “ethics” in the course title.   Northwestern still uses the traditional “Legal Ethics” and at Washington University, the course is “Lawyer Ethics.”  Other schools combine “ethics” with other concepts as Marquette did in the most recent former name of the course.  The University of Michigan uses “Ethics and Law of Lawyering—the Marquette version of this switched ethics and law.  At the University of Chicago, the title is “Legal Practice and Ethics” while it is “Ethics, Business, and Lawyers” at the University of California-Berkeley.

The most popular name for the course is the ethically neutral “Professional Responsibility” which is how the course is known at the University of Virginia, Georgetown, Penn, Columbia, Texas, Stanford, Vanderbilt, Washington & Lee, and UCLA.  Wisconsin, apparently to emphasize the multiplicity of obligations, calls it “Professional Responsibilities.”  At NYU, it is “Professional Responsibility and the Regulation of Lawyers;” while at Yale it is “Professional Responsibility and the Legal Profession.”  Harvard, being Harvard, uses its own name, “Legal Profession.”

If law schools do decide to follow Crittenden’s recommendation and focus much more explicitly on ethical and moral behavior on the part of lawyers and clients, a good way to start would be to return to the use of “Legal Ethics” as the name of the basic courses in … legal ethics.

I will acknowledge that teachers of this course in Wisconsin do face a type of pressure to orient their courses around the formal rules governing the practice of law that does not exist in other states.  Forty-six states now require prospective lawyers to take the Multistate Professional Responsibility Examination, a separate examination that requires knowledge of the American Bar Association’s Model Rules of Professional Conduct.  Law students in these states invariably take an MPRE review course which provides them with a systematic presentation of the Model Rules.  Three of the other four states test knowledge of ethical rules as part of the regular bar examination and the topic is covered, sometimes extensively, in bar review courses for those states.

Wisconsin’s diploma privilege, however, means that the only exposure that students at Marquette and the UW receive to the rules governing law practice is what they are exposed to in their required Professional Responsibilities or Law Governing Lawyers course.  However, I do not find persuasive the argument that there is not time in this class to provide both a thorough explication of the Wisconsin Rules and to challenge students to think systematically about the moral and ethical obligations that follow from bar membership.

I, for one, would be happy to see the name of our course returned to “Legal Ethics.”

Questions of Professionalism

Posted on Categories Judges & Judicial Process, Legal Ethics, Legal Practice, Legal Scholarship, Legal Writing, Wisconsin Law & Legal System2 Comments on Questions of Professionalism


I’ve been thinking about professionalism lately.  Two discussions in the past week or so have stuck with me.

The first discussion appeared in the Law Librarian Blog (thank you, Professor O’Brien, for forwarding it.)  In Florida, U.S. District Court Judge Gregory Presnell issued an order denying a plaintiff’s motion for voluntary dismissal for

Failing to comply with Local Rule 3.01(g), for failing to secure a stipulation of dismissal from Defendant pursuant to FED. R. CIV. 41 (a)(ii), and for otherwise being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible. Continue reading “Questions of Professionalism”

Lawyers & Social Networking

Posted on Categories Legal Ethics, Legal Practice, Media & Journalism9 Comments on Lawyers & Social Networking

computer_with_scales3An article in today’s New York Times talks about what can happen when lawyers open up online.  The article begins with the story of Sean Conway.  Attorney Conway took to his blog to state exactly how angry he was with a Fort Lauderdale judge.  He said she was an “Evil, Unfair Witch.”  But because Conway is a lawyer, his online ranting resulted his being reprimanded and fined by the Florida bar.

Of course, lawyers aren’t the only ones whose livelihood is affected by their online postings.  There’s this, and this, and this.  Having one’s online activity be the basis of dismissal has increased so much that a new phrase – “Facebook fired” – has entered our lexicon. 

But being a lawyer means something more.  Lawyers have long been held to a higher standard of conduct than other members of society.  As the New York Times article points out, your “freedom to gripe is limited by codes of conduct.”  Thus, criticizing the court or revealing client details online – even if the lawyer thinks she’s veiled the true subject – can cause trouble for a lawyer because she runs the risk of violating rules of professional responsibility. Continue reading “Lawyers & Social Networking”

On What Lawyers Really Do

Posted on Categories Legal Ethics, Legal Practice1 Comment on On What Lawyers Really Do

customer-service2Client service is not a class taught in law schools, but don’t forget that client service is at the heart of what we do as lawyers. Our mandate as attorneys is to zealously (and ethically, of course) represent our clients. So whatever area of the law you are in or going into, don’t forget that you are less a litigator, for example, than a service provider. After all, no client, no case to litigate, or will to draft, or deal to do.

Truth be told, it’s not easy to keep client service in mind.  We think of ourselves as practitioners of the law–and we are–and we often want to do things in the way we see as “right” or interesting or novel. When I say “right” I’m talking about your professional opinion about the way things ought to be done, not an ethical or moral rectitude. But sometimes our clients don’t want or need things done the way you or I think they ought to be done. Sometimes clients want interesting or novel thinking, and sometimes they don’t. That’s when it can be difficult to remember that your job is to serve your client and not simply to practice law by your own lights.

Consider a poignant example. I recently sat in a room with one of my company’s outside counsel who is handling a large litigation for us.  She enjoyed telling me the story about defending one of her first big cases in which damages to her client could have been in the range of several tens of millions of dollars. The case settled for closer to ten million, and her client celebrated the result. She thought the client had gone insane: who celebrates losing ten million dollars, and not clearing their good name in court to boot?  But her feelings demonstrate the disconnect between a then-less-seasoned attorney and her client. She wanted to try the case and score a “win”; the client wanted to minimize risk and expense, and believed that settling the case for a fraction of the potential damages was the way to achieve that goal.  She did not have a good understanding of her client’s view of the world, nor of her client’s goals at the time.  If she had, she would have celebrated the “win” with the client rather than doubting the client’s sanity. Continue reading “On What Lawyers Really Do”

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