ABA releases new Formal Ethics Opinion on a lawyer's obligation to disclose information about a judge's disqualification

The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 522 - Lawyer’s Obligation to Disclose Information About Grounds for a Judge’s Disqualification. Its abstract reads as follows: 

ABA Model Rule of Professional Conduct 8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. When a lawyer in a proceeding possesses information that the lawyer knows is reasonably likely to give rise to a judicial disqualification obligation, Rule 8.4(d) requires the lawyer, as an officer of the court, to disclose that information to the tribunal. When the lawyer possesses the information only because it is “information relating to the representation of a client,” then the lawyer’s disclosure obligation is subject to the lawyer’s duty of confidentiality under Model Rule of Professional Conduct 1.6.

For now (before it is archived), you can read the opinion here. 

Judge orders Lindsey Halligan to stop 'masquerading' as US attorney

 A few days ago I posted that a judge issued an order to show cause why Lindsey Halligan's conduct in continuing to refer to herself as "US Attorney" did not constitute a violation of rule 8.4 regarding dishonesty, among others.  See here and here.

A few days later, after a hearing, the judge has issued an order.  In it, the judge ordered the removal of the words “United States Attorney” from government filings in a case Halligan was involved in and prevented her from representing herself as the U.S. attorney in the Eastern District of Virginia unless appointed or confirmed by the Senate.  The judge also stated: “This charade of Ms. Halligan masquerading as the United States Attorney for this District in direct defiance of binding court orders must come to an end,”  Courthouse News Service has the story and a link to the order, here.

See also, 

Brutal, Humiliating Benchslap Puts An End To Lindsey Halligan Experiment.  Above the Law.

Judge posts job listing for prosecutor role Halligan claims to hold.  The Hill

Lindsey Halligan, Trump's former personal attorney, exits federal prosecutor post. NPR

Two Trump appointed attorneys disqualified (one for claiming to hold office she does not; another after the court found he did not have a right to hold the office)

Back in November of 2025, a federal District Judge found that Lindsey Halligan's appointment as interim US Attorney was unlawful, and that, therefore, she had no authority to hold the office she claimed to hold at the time.  As you probably remember, this is the insurance lawyer with no prosecutorial experience that the Trump administration appointed, among other things, to bring charges against James Comey.  

Although the government appealed the judge's opinion and order, no court has issued a stay which means the order remains in place.  

For that reason, earlier this week, another federal judge was surprised to see that Ms. Halligan has continued to appear before his court still claiming to be a US Attorney, and promptly ordered her to explain herself and to explain why her conduct does not constitute a false or misleading statement in violation of professional conduct rules.  

The Hill and Above the Law have the full story (and the judge's order).

Meanwhile, in New York, another federal judge has disqualified the top federal prosecutor in upstate New York and blocked subpoenas his office issued to state Attorney General Letitia James finding that the lawyer's service as acting U.S. attorney for the Northern District of New York “was and is unlawful” because the Justice Department maneuvered to keep him in the role after judges declined to extend his tenure, in violation of statutory procedure.

Again, The Hill and Above the Law have the story.

ABA Committee releases new Formal Opinion on discrimination in the jury selection process

 The ABA Standing Committee on Ethics and Professional Responsibility has issued  a new Formal Opinion: ABA Formal Ethics Opinion 517 - Discrimination in the Jury Selection Process.  

If you recall, paragraph [5] of the comment to Rule 8.4 states that "[a] trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g)."  For this reason, the opinion attempts to address the following questions: 

Rule 8.4(g) presents two principal questions regarding discriminatory challenges. First, in light of Comment [5], when does a lawyer’s unlawful exercise of peremptory challenges on a discriminatory basis violate Rule 8.4(g)? Second, given the statement that lawyers may engage in legitimate advocacy consistent with the Model Rules, does a lawyer violate Rule 8.4(g) by exercising peremptory challenges on discriminatory bases where not forbidden by other law? 

The opinion then proceeds to address the questions and concludes that Rule 8.4(g) does NOT prohibit a lawyer’s discriminatory but lawful exercises of peremptory challenges, but also that 

A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g). It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. 

You can read the full opinion here. 

How not to practice law: commit voter fraud

A Trump supporter lawyer who was convicted of two counts of election fraud, based upon evidence establishing that he had voted in both Florida and in Ohio in the 2020 presidential election as well as in the 2022 general election and who was later suspended from the practice of law in both Ohio and Florida, was more recently disbarred in New York.  For more on the case, go to the Legal Profession Blog here.

Did Illinois Hearing Board recommend a six month suspension for violation of Rule 8.4(d) because there is no other rule and this one seems to work as a "catch-all"?

 That's a long title above, but hear me out.  Last July, I reported on a complaint filed in Illinois against a lawyer for his conduct toward courthouse personnel.  The conduct included making inappropriate comments, and advances on female court employees, which could have been defined as harassment.   

However, because Illinois has not adopted a rule like Model Rule 8.4(g), and the current rule related to harassment is ineffective, the disciplinary agency did not really have a rule to support the complaint.  So they did what disciplinary agencies sometimes do when there is no specific rule: they looked for a generic catch-all provision to try to frame the complaint around it.  And they found it in Rule 8.4(d) which relates to conduct prejudicial to the administration of justice.  

In my original post, I argued that this section of the rule was not meant to apply to the conduct at issue in the case.  But, because the Illinois Supreme Court has made it clear that all disciplinary charges must be based on a specific rule, the disciplinary agency was in a bind.  

I recently reported and provided a link to a hearing on whether Illinois should to adopt a rule like Model Rule 8.4(g).  (Go here for my comment on the proposal before the hearing; go here for my report of the hearing.)  Adopting a good version of that rule would provide a rule that would allow for the imposition of discipline in a case like the one of the lawyer harassing court personnel.  

But opponents of such a rule, ironically, will point to the fact that the case was prosecuted under an existing rule as proof that a new rule on harassment is not needed.  

Which brings me to today's post.  The Illinois Hearing Board heard the case as argued under Illinois Rule 8.4(d) and recommended a six month suspension.  Here is the Board's report.

As I have discussed previously (see my posts linked above), the proposed new rule can be improved significantly but it would be more on-point than trying to stretch the reach of the definition of "prejudicial to the administration of justice."

So what do you think?  What is the better choice:  (1) to adopt a new rule (which should be an improved version of Model Rule 8.4(g)), or (2) to reject such a proposal and stretch the meaning of conduct prejudicial to the administration of justice to include pretty much anything a lawyer does that the disciplinary agency can claim affects any aspect of the practice of law?

Illinois Hearing on proposal to adopt a rule like Model Rule 8.4(g)

 Last week I reported that the Illinois Supreme Court Rules Committee was going to hold a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g).  I posted my comments on it here, and if you did not read that post, you probably should go there are read it before watching the hearing.  At the time, I had missed the deadline to participate but I expected others to do so, and I knew that at least the proponents of the proposal would present their position.

You should watch the hearing to reach your own conclusions, but here are my quick thoughts.  First, if you read my previous post you will remember that I am not a huge fan of the proposal but I can live with it because it clearly states in the comment that the rule does not regulate Constitutionally protected speech.  That is a key to me.  Today at the hearing I found out that the original proposal included that statement in the text of the rule itself, which I have argued is a better approach and, thus, would be my preference.  The rule recently adopted in New York, which I think is the best yet, takes that approach.  However, even though the original proposal in Illinois included that provision in the rule, somewhere along the line (apparently by the Rules Committee) it got moved to the comment.  Not great, but I can live with it.

Now, the hearing did not go as I expected.  I thought there would be more comments in favor of the rule.  Instead, the only person who spoke in favor of the rule was a representative of the Illinois Bar Association, which is the main sponsor of the proposal, so of course they would speak in favor of it.  Other than that, nothing.  

The speaker did a good job arguing in favor of adopting the rule and I found myself agreeing with most of it, except that she tried to argue that the rule does not reach as far as the Model Rule by making a distinction based on the fact that the Model Rule applies to conduct "related to" the practice of law, while the ISBA proposal applies to conduct "in" the practice of law.  That argument fell flat on its face and was totally unconvincing.  The explanation of how the phrase "in the practice of law" should be interpreted was exactly the same used by the ABA when referring to conduct "related to the practice of law."  If approved, the Illinois rule will have the same effect at the ABA Model Rule despite the difference in language.  If that is the intent, I wish they would simply leave it as "related to" to avoid confusion.  If that is not the intent, then they need to make the distinction clear.  

Thus, the proposal still has weaknesses, so the question is whether the weaknesses are enough to reject the proposal altogether.  As you watch the arguments consider which side you think has more support.  One thing I will note is that the speakers against the rule argued repeatedly that the rule would violate the Constitutional protections for free speech, but they did not address how that would be the case if the comment to the rule would explicitly state that rule should not be interpreted that way and that speech would be protected.  

As I said, the proposal has some weaknesses and some of the speakers who argued against its adoption exposed some of them.  

I was surprised that only one person spoke in favor of the rule.  Obviously, there were written comments submitted to the Committee, but every other speaker spoke against it.  Not one of them argued for changes to the proposal to make it more acceptable to them.  They were all or nothing.  The speakers who were opposed to the proposal saw nothing in it of value and all argued it should be rejected in its entirety.  Full stop.  And, just like it was during the commentary period for the ABA's Model Rule, it felt the opposition was a concerted effort by Christian organizations arguing that they should not be subject to discipline for discriminating based on their religious beliefs, that the proposal would violate the Constitution (even though the proposal explicitly states it should not be interpreted that way) and that the current rule is adequate.  (Although it is clear that it is "adequate" because it is actually inadequate at addressing the problem since it depends on the adjudication of claims by other government agencies, which does not happen often.)

I was also surprised that there was no attempt at compromise.  Speakers either wanted the full proposal rejected or adopted.  Nothing in between.  The only thing that came close, and with which I agree too, was a comment by the speaker for the ISBA who said they supported moving the statement about constitutionally protected speech back to the text of the rule.  Other than that, all I heard was either support for the proposal as is, or opposition to it in its entirety.  

Illinois to consider proposal to adopt a version of Model Rule 8.4(g)

November 8, 2023

The Illinois Supreme Court Rules Committee will hold a public hearing on November 15 to address public comments on five proposals, including a proposal to amend Illinois Rule of Professional Conduct 8.4 in order to largely adopt ABA Model Rule 8.4(g).  You can find the proposal here.  For more information on the hearing and the other proposals, go here.

Long time readers of this blog know that I have been following the saga of Model Rule 8.4(g) since back when it was just a proposal before the ABA and, since its adoption by the ABA, through the process of adoption and rejection by individual states. And, you might also recall, I am not a fan of the text of the Model Rule.  I have argued many times that it is vulnerable to an attack as violating the First Amendment to the US Constitution.  (To read my comments, go here and scroll through several pages of posts.)  

I have not checked recently what the current “box score” of adoption among jurisdictions is, but the last time I checked (in late 2022) the Model Rule had been adopted without changes in only one jurisdiction (Vermont) and with modifications in seven, while it had been rejected in eight states,   Two states have apparently abandoned proposals to adopt the Model Rule while three states and the District of Columbia are still considering adopting it.  

The most recent state to adopt a version of the Model Rule was New York, and the most recent one to specifically reject it was Idaho (see my post here). (And, by the way, I think the version adopted in New York is the best one yet. See my comment here.

But today’s post is about Illinois.

Illinois had a professional conduct rule on discrimination before the ABA adopted MR 8.4(g), and for that reason resisted adopting the Model Rule when it was first suggested.  You can find the, as of now, current Illinois rule (8.4(j)), here.  Yet, the effort to adopt the Model Rule did not abate and the Illinois State Bar Association (ISBA) continued to work on a proposal. 

That effort resulted in a formal proposal to amend the current rule and substitute it for a version of the ABA Model Rule.  The proposal is not as good as the version of the rule adopted in New York but it is better than the current rule and better than some of the versions adopted in other jurisdictions including the one adopted in Pennsylvania which was declared unconstitutional in a case later vacated for lack of standing.  [Note that, contrary to what has been reported elsewhere, the case vacating the lower court’s decision did not uphold the constitutionality of the rule; it merely held that the lawyer who brought the case did not have standing.  The court left the question on the constitutionality of the rule to a future day when a lawyer with standing would challenge it.  For my comment on this case go here.]  A case challenging the Constitutionality of the rule adopted in Connecticut is pending.

So, what are the highlights of the proposal in Illinois?

The current rule only considers misconduct conduct that has been adjudicated to violate a federal, state or local statute or ordinance that prohibits discrimination and only if that conduct is determined to reflect adversely on the lawyer’s fitness as a lawyer.  That makes the rule very limited in scope and available in very limited circumstances.  It also forces the disciplinary agencies to have to wait until the conduct is adjudicated as discrimination by other government agencies, which can take a long time, if it happens at all to begin with.

In contrast, the new proposal largely mirrors the scope and availability of Model Rule 8.4(g), which includes the fact that the rule would apply to conduct outside the practice of law, as long as it is related to the practice of law.  By comparison, other jurisdictions have limited the application of similar rules to conduct in the actual practice of law.  Obviously, if you think that the Model Rule is too expansive, then you won’t like the ISBA proposal either.  

The ISBA proposal also adopts the view expressed in the Model Rule that suggests that lawyers should be able to choose clients freely, presumably even if doing to looks like they are discriminating.  For example, presumably lawyers could, without violating the rule, offer to provide services only to women or to men, as some divorce firms do now.  

Unfortunately, the proposal (in its comment) continues to use the euphemism “verbal conduct” in an attempt to make an unworkable distinction with the concept of “speech,” but at least it also includes an explicit statement affirming that Constitutionally protected speech will be protected from prosecution under the rule.  

To me, this is the most important aspect of the whole proposal – and it bothers me that it is relegated to the comment rather than placed in the text of the rule itself.  But something is better than nothing, and it is an improvement over the ABA Model Rule which does not address the issue at all.  

Thus, the proposal states in a new suggested paragraph in the comment to the rule that “Conduct protected by the Constitutions of the United States or the State of Illinois, including a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy, does not violate this paragraph.”   

Aside from the fact that the reference to “this paragraph” is misleading (since it reads like it refers to the comment rather than to the rule), this is a key aspect of the proposal without which I would not support it. And for that reason, I think this statement should be part of the text of the rule itself, as it is in the recently adopted rule in New York.  

Also, oddly, if there was a place to use the phrase "verbal conduct" it would be here, but the drafters decided to simply say "conduct."  A better way to draft this statement would have been 

"Conduct or speech protected by the Constitutions of the United States or the State of Illinois does not violate the rule.  This includes, but is not limited to, a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy."

Finally, I noticed that the proposal (again, in the comment) includes the obligatory silly reference to the claim that “[t]he Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.”

Obviously, this is a well intended attempt to suggest that we should not worry about the rule because we can trust that regulators are not going to try to enforce it randomly or in violation of people’s rights.  As I have argued before, this is naive at best (see here) since history proves otherwise. But in this particular case it does not bother me as much since the suggested text in the comment makes it explicit that Constitutionally protected speech will continue to be protected.  (Again, I wish that statement had been placed in the text of the rule itself, but I guess I’ll get over it.)

So, all in all, the proposal is a good effort and I expect it will be approved.  I would make a few changes but I can live with it.  

Would this proposed new version of the rule make a difference?  How would it be used to regulate the practice of law?  I am not sure we know exactly how, but here is a quick example.  In a recent post I discussed a complaint filed against a lawyer charging him with a violation of Illinois Rule 8.4(d) which refers to conduct prejudicial to the administration of justice under circumstances in which I argued were "a stretch" because the conduct was more along the lines of the type of conduct a rule like Model Rule 8.4(g) seeks to address.  I suspect that the disciplinary agency charged the lawyer using Rule 8.4(d) because they did not feel there was another rule they could use.  If the new ISBA proposal is approved, they would have a new, and more adequate, rule to use in cases like those.  For my comment on that case go here.

UPDATE 11-15-23:  The hearing was held today and you can watch it below or, if you can't see the player, you can go here.  The discussion of the proposal starts at about the 29 minute mark.  There was only one speaker in favor of the proposal (a spokesperson for the proponent ISBA), and several speakers against it.  As it happened with the ABA proposal way back when it was discussing approving what later became MR 8.4(g), the opposition appeared to be a concerted effort by Christian groups that argued, essentially, that they should be allowed to discriminate based on their faith/values, and that to the extent that there was other objectionable discrimination going on, the current rule is enough to deal with the problem.  

Here is the video.  Remember that you can click on the square icon in the bottom right corner to resize the window to full screen.

Should this lawyer be subject to discipline in Illinois?

Back in 2013, the Illinois Supreme Court decided in a case called In re Karavidas, 999 N.E.2d 296 (Ill. 2013), that the state could not subject a lawyer to discipline for conduct outside the practice of law unless the state could make a case that the conduct was a violation of a specific rule of professional conduct.  As the court explained:

    . . . we hold that professional discipline may be imposed only upon a showing by clear and convincing evidence that the respondent attorney has violated one or more of the Rules of Professional Conduct. Mere bad behavior that does not violate one of the Rules is insufficient.

    . . . . [B]efore professional discipline may be imposed . . . , the [State] must demonstrate that the attorney violated the Rules of Professional Conduct. To the extent that any of our prior cases suggest that an attorney may be subjected to professional discipline for conduct that is not prohibited by the Rules of Professional Conduct or defined as misconduct therein, we hereby [overrule those cases].  . . . Personal misconduct that falls outside the scope of the Rules of Professional Conduct may be the basis for civil liability or other adverse consequences, but will not result in professional discipline. 

The court wanted to put an end to disciplinary actions brought on tenuous charges based on claims of conduct unbecoming the profession, or conduct that tarnished the image of the profession, etc., which is not surprising since other jurisdictions have moved away from the old "appearance of impropriety" standard too. 

And this is why this bit of news caught my eye:  a disciplinary complaint has been filed in Illinois against a lawyer for inappropriate harassing conduct directed at the staff of a law library.  

I am not in any way suggesting that the conduct was not inappropriate, or objectionable.  In fact, maybe it was criminal - I don't know.  What I am suggesting is that the complaint does not seem to be consistent with the principle set in Karavidas.

You can read the complaint here, but if you are looking for the specific rule of professional conduct allegedly violated you won't find it until the very end of the last paragraph of the complaint, almost as an afterthought.  And that rule is 8.4(d) which relates to conduct prejudicial to the administration of justice.  

Here is paragraph 19 of the complaint:

    . . . Respondent has engaged in the following misconduct: conduct that is prejudicial to the administration of justice, by conduct including, but not limited to, touching the head and hair of H.M., a Will County Courthouse law library employee, without her consent in March 2021; telling an employee of the Clerk’s office to “eat shit and die;” asking a female employee of the Clerk’s office to have dinner with him; and making a comment to the effect of “If I were 55 years younger, I would get with her,” about C.S., a law student-judicial extern, to a group of judicial externs; resulting in disruption to Courthouse operations and necessitating the use of Courthouse resources to investigate Respondent’s conduct and to place restrictions on Respondent’s access to Courthouse facilities, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

Again, I agree that the conduct was inappropriate, and may be the basis for some form of liability.  What I am wondering is whether it meets the requirements set forth by the Court in Karavidas.  At first sight, it does since the complaint is clearly using a Rule of Conduct to claim the basis for discipline.  But I would expect someone to raise the questions as to whether the conduct is the type of conduct to which that rule should apply.

I always thought of the notion of "prejudicial to the administration of justice" as conduct that interfered with a court's ability to properly conduct a proceeding.  But maybe my understanding is too limited in that way.  Or, on the other hand, maybe the argument in the complaint is trying to stretch the concept a little bit too far.  What do you think?

Or, maybe what this shows is that we need a new rule, because you might be wondering why the disciplinary agency did not charge the attorney with a violation of a rule like Model Rule 8.4(g).  

The answer to that question is that Illinois has not adopted Model Rule 8.4(g) because when the ABA adopted Model Rule 8.4(g), Illinois had a preexisting rule regulating conduct deemed to constitute discrimination or harassment.  The problem is that Illinois' rule is of limited applicability and would not apply to the facts of this case.  You can find it here under 8.4(j).

So, if the conduct in this case is something that ought to be the subject of professional discipline, maybe a well drafted version of Rule 8.4(g) should be adopted to deal with conduct like the one in this case rather that trying to stretch the interpretation of the meaning of "the administration of justice" in Rule 8.4(d).  

Of course, what constitutes a "well drafted" version of Model Rule 8.4(g) is still up for grabs, and before the courts, and would be the subject of a different and long conversation.  For my posts on that subject you can click here and scroll down, but to save you the research, let me just say that I think the Model Rule is vulnerable to a Constitutional attack, and that I think the rule in New York is the best drafted one I have seen yet.  

Trump lawyer admits to lying about the elections in order to avoid harsher discipline; then promptly proceeds to lie about it

 This week saw a lot of coverage and debate about the decision by the Colorado disciplinary authorities to agree to a stipulated public censure for attorney Jenna Ellis who admitted that she misrepresented facts (with "at least a reckless state of mind") at least ten times during Trump’s attempts to challenge the election results in 2020, and to doing so for a selfish motive as an aggravating factor. You can read the opinion here.

A day later, however, she took to Twitter to claim that she did not admit to lying, or that she didn't lie, or something.  According to her, "lying requires intentionally making a false statement" which I guess means she admitted to making misrepresentations but that she did not know what she was doing or saying at the time; or maybe that she only admitted to making misrepresentations recklessly?  I don't know; it is hard to tell.   

Interestingly, as reported by Steve Benen, "[a]s recently as 2016, Jenna Ellis was not a Donald Trump admirer. She repeatedly described the then-candidate as an “idiot,” adding that she considered him an “unethical, corrupt, lying, criminal, dirtbag.” Ellis even took aim at Trump’s supporters, saying they didn’t care about “facts or logic.”"  

Yet, somehow, at some point I guess Ellis herself became uninterested in facts and began to misrepresent them or maybe she just did not care enough to know she was misrepresenting them or maybe she thinks it is ok to make statements with reckless disregard for the truth...?  Again, it is hard to tell.  

Either way, it all has now caught up with her, although only in a minimal way.  And this is the first issue debated this week.  Why impose such a minimal sanction, which does not include any type of suspension from practice and which she evidently felt was easy to ignore?  It is hard to say, but clearly this was a settlement.  The disciplinary authorities wanted to impose discipline and she did not want to risk a worse outcome.  Should the authorities have tried to get a more significant penalty?  I think so, but it is hard to know what limitations they were dealing with.  Not knowing what the evidence and other factors were, it is hard to say if the disciplinary authorities did the right thing.  

The one thing we can say is that the sanction does not seem to have had much on an effect on the lawyer's willingness to believe in facts or logic as a result, so not much has changed.  As argued by Dennis Aftergut in a short piece published at Verdict, 

There is honor in holding oneself to account, in admitting one’s wrongdoing when it occurs. . . . 

Unfortunately, the lesson seems to have been lost on Jenna Ellis. Within hours of her censure agreement being publicized, she parsed its words and severed herself from whatever redemption she might have claimed from confessing error.

. . . .

In Ellis’s case, . . . [t]he stipulation she signed cites 10 of her false statements . . .

The stipulation then states: “Respondent has . . . violated [Rule of Professional Responsibility ] 8.4(c) (dishonesty).” It cites Colorado case law establishing that “reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.”

Ordinary folk could be forgiven for thinking that “knowingly” engaging in dishonest, fraudulent, or deceitful conduct by making false statements is a pretty good description of lying. “I knew my statements were false, but I didn’t intend to lie when I made them” is some heavy water to carry.

Most people who acknowledge their wrongdoing at least seek the public benefit from saying that they held themselves to account. Jenna Ellis has managed to get the worst of both worlds—being professionally sanctioned by agreement and abdicating all responsibility for her behavior.

For more on the disciplinary decision you can go to the Legal Profession blog, Politico, MSNBC, Rolling Stone or Above the Law, 

Another issue debated during the week by some is whether the statements were protected by the First Amendment, and whether it would be valid to impose sanctions for protected speech even if the lawyer was acting as a lawyer and the statements were made in order to advance the interests of a client.  This is an interesting question that may have played a factor in the Colorado authorities decision to settle the case rather than to risk having to litigated further.

Dennis Aftergut mentions this issue in his piece also:

Ellis’s statements . . . were made in the media and purely for political purposes. First Amendment protections broadly apply in these arenas, and—whether you agree or not—some of the country’s foremost legal experts believe that free speech rights raise formidable barriers to disciplining lawyers who deliberately engage in political lies.

But now, thanks to Jenna Ellis, we have a discipline case on the record against a lawyer whose only misconduct was in misleading the public in the public square.  . . .

New disciplinary charges filed against Texas Attorney General and against Rudy Giuliani for their participation in attempts to overturn the 2020 presidential elections

The Texas state bar has sued the state's Attorney General Ken Paxton arguing professional misconduct for trying to void Biden election.  Courthouse News Service has the story here and Above the Law has a comment here.

Meanwhile, the District of Columbia office of disciplinary counsel has filed charges against Rudy Giuliani alleging that he made baseless claims in federal court filings about the results of the 2020 presidential election in Pennsylvania.  You can read more about this story in The Guardian, Politico, Jurist and the Legal Profession Blog.

New Opinion from the ABA Committee on Ethics & Professional Responsibility on Solicitation

A few days ago, the ABA Standing Committee on Ethics and Professional Responsibility published Formal Opinion 501 in which it reminds us that not only must attorneys refrain from engaging in improper direct solicitation of potential clients, they also have an ethical duty to ensure that their employees do not engage in such misconduct.  You can read the full opinion here.  The summary is as follows:

ABA Model Rule of Professional Conduct 7.3(a), amended in 2018, contains a narrowed definition of what constitutes a “solicitation.”  Rule 7.3(b) delineates the type of solicitation that is expressly prohibited.  Rules 8.4(a) and 5.3 extend a lawyer’s responsibility for solicitation prohibitions not only to actions carried out by the lawyer directly but also to the acts of persons employed by, retained by, or associated with the lawyer under certain circumstances.

Rule 5.3(b) requires lawyer supervisors to make reasonable efforts to ensure that all persons employed, retained, or associated with the lawyer are trained to comply with the Rules of Professional Conduct, including Rule 7.3(b)’s prohibition. Partners and lawyers possessing comparable managerial authority in a law firm must make reasonable efforts to ensure that the firm has training that reasonably assures that non lawyer employees’ conduct is compatible with the professional obligations of lawyers. Under Rule 5.3(c), a lawyer will be responsible for the conduct of another if the lawyer orders or with specific knowledge of the conduct ratifies it, or if the lawyer is a manager or supervisor and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Rule 8.4(a) makes it professional misconduct for a lawyer to “knowingly assist or induce another, to violate the Rules or knowingly do so through the acts of another. Failing to train a person employed, retained, or associated with the lawyer on Rule 7.3’s restrictions may violate Rules5.3(a), 5.3(b), and 8.4(a).

Many legal consumers obtain information about lawyers from acquaintances and other professionals. The Model Rules of Professional Conduct are rules of reason. Recommendations or referrals by third parties who are not employed, retained, or similarly associated with the lawyer and whose communications are not directed to make specific statements to particular potential clients on behalf of a lawyer do not generally constitute “solicitation” under Rule 7.3.

Ethical Grounds has a comment on the opinion here. The ABA Journal has a comment here. 

Texas files complaint against Trump campaign lawyer Sydney Powell for filing frivolous lawsuits

 A standing committee of the State Bar of Texas filed a complaint in the District Court of Dallas County, Texas against former president Donald Trump’s attorney Sidney Powell, claiming that she engaged in misconduct by pursuing baseless lawsuits alleging fraud in the 2020 presidential election. The complaint, which was filed on March 1, was released to the public on Tuesday.  You can read the (very short) complaint here.  Jurist has more on the story here.

Article on the case against John Eastman

As you probably know by now, the State Bar of California recently announced that it had initiated a State Bar Investigation into John Eastman, former Champman University professor, for his involvement in the Trump's campaign efforts to invalidate the results of the 2020 Presidential Election. 

The fact that the State decided to make announcement itself generated some controversy.  See here, for example.  But, perhaps more interesting, is the discussion of the merits of the issue.  What is the basis for the complaint?  Is it valid?  Is it likely to lead to sanctions?

If you are interested on these questions, head over to Law Fare where Paul Rosenzweig offers a lengthy comment on the subject.

Podcast on civility in the practice of law

The podcast Reimagining Law dedicated a recent episode to discussing the difference between being a client advocate and overly aggressive, how aggressive behavior impacts legal outcomes and the bottom line, and how the Illinois disciplinary authority is addressing acts of incivility that don’t rise to the level of discipline or an ethical violation.  

Some of the topics covered include:  What is the difference between being a zealous advocate for your clients and being overly aggressive?  How can aggressive behavior impact the bottom line or case outcomes?  Are there issues related to incivility transactional matters for lawyers?  How do clients respond to overly aggressive attorneys?  How do judges respond to such attorneys? What happens when an act or the behavior of an attorney doesn’t quite reach the level of an ethical violation?   You can watch the episode below by clicking the "play button" or you can go to YouTube here.

At least two different groups of lawyers file complaints asking for Rudy Giuliani to be disciplined in New York

 A few days ago I reported that the New York State Bar Association was considering expelling Rudy Giuliani from its membership.  See here.  However, the NYSBA is just not a regulatory agency so expulsion from the association would not affect Giuliani's ability to practice law in the state.

Since then, however, at least two groups of lawyers have filed complaints about Giuliani before the appropriate regulatory agency in New York, which could lead to discipline.  Obviously, all the complaints can do is advocate for the agency to take action.  The agency will decide whether to conduct an investigation and, then, what to do given the results of the investigation.  Like any other disciplinary complaint, it could be dismissed, or it could start a process that could result in disbarment.  But a lot has to happen before it gets to that point.

Meanwhile, the complaints do make for interesting reading.  One of them was filed by a group called Lawyers Defending American Democracy, Inc. You can read it here.  Forbes has a short summary.  

The 18 page document (plus appendices) essentially argues that Giuliani should be disciplined for violating the New York versions of Model Rules 8.4, 4.1, and 3.1, related to the duties of honesty, trustworthiness, and the duty not to pursue frivolous litigation.  The complaint argues that Giuliani engaged in dishonest conduct by knowingly lying about the results of the election and pursuing a court challenge with no support.  It concludes that “A lawyer who lies to the public and abuses the court system to undermine democracy and the rule of law is not fit to practice law.”

The other complaint, which makes very similar arguments, was brought on behalf of Michael Miller, a past President of both the New York State Bar Association and the New York County Lawyers Association and was signed by dozens of prominent lawyers and academics.  You can read that one here.   

For more discussion and commentary you can go to:  Forbes, The New York Times, Law & Crime and Otherwise.

Over 7,000 Lawyers Sign Petition To Have Josh Hawley And Ted Cruz Disbarred

When Ted Cruz and Josh Hawley supported the effort to object to the electoral college, Yale and Harvard alums started internet petitions to have them disciplined.  Now, after their expressions related to the attack on the capitol have been exposed, a new petition has been published asking for their disbarment.  

The petitions are really an expression of frustration and political statements more than ethics arguments.  Whether the conduct deserves discipline depends, of course, on whether it violated the rules of professional conduct and the answer to that question is more complicated than the petitions make it appear.

First of all, if the argument is based on expressions made during the legislative process, I believe lawmakers are immune from liability and I don't know if there is any case law that explains whether that includes immunity from disciplinary sanctions.

Second, the arguments are based mostly, if not entirely, on speech which raises the question of whether the expressions are protected speech, which depends on the expressions on a case by case basis.

Having said that, let's assume that the expressions are considered not protected because they constitute incitement to violence or, worse incitement to overthrow the government.  If that is the case, do the expressions violate rules like Model Rule 8.4(b) which hold that it is professional misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects?

The petitions also argue that Hawley and Cruz violated rules like 8,4(c) which holds that it is misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation by repeating unsubstantiated statements regarding the election.

You can read one of the petitions against Cruz and Hawley here.  Jurist also has the story here.

New York State Bar Association considers expelling Rudy Giuliani

 The New York State Bar Association is launching an inquiry into expelling Rudy Giuliani from its membership over his comments ahead of the attack on the U.S. Capitol, and his efforts to cast doubt on the results on the presidential election.  The NYSBA is not a regulatory agency, however, so expulsion from the association would not affect Giuliani's ability to practice law in the state.

You can read more about the story here: NPR, Politico, Law & Crime, Above the Law, and the ABA Law Journal.

How not to practice law: try to get your client to pay a fee by providing sexual services

We have seen stories like this before but it is notable that the discipline imposed is for an attempt to violate the rules of professional conduct.  That is not so common, although we did see another example last year in a similar case (see here).

In this new case, the client apparently did not have enough money to pay the lawyer what he said his services would cost, so he told the client she could pay him by having sex with him.  Like I said, we have seen cases like this before, but in this one we have the transcript of the actual conversation in which the lawyer explained the transaction he had in mind.  Don't follow the link if you are easily offended by language of a sexual nature.  Here is the link to the story which includes the transcript of the conversation. The decision of the court, which also includes the transcript, is here.

Eventually, the lawyer had his law license "annulled" which I assume is akin to a permanent disbarment.

Lawyer disciplined in New York for offensive speech

Some of you might remember an incident caught on video about two years ago in which a lawyer went on an offensive/racist tirade at a restaurant in New York when he heard some employees speaking in Spanish among themselves.  The incident was caught on video and posted on social media.  See here.

Well, more than two years later, I am writing about it because just a few days ago the lawyer was publicly censured for his conduct under New York’s Rule of Professional Conduct 8.4 (h) which describes as misconduct “conduct that adversely reflects on the lawyer’s fitness as a lawyer.”

This decision raises a number of interesting issues.  First, it should be noted that New York has an “anti-discrimination” rule, akin to Model Rule 8.4(g), but it did not apply in this case because the conduct was not related to the practice of law.  

For that reason, this is a case of purely private conduct, or conduct “outside the practice of law” and that conduct is expressive conduct or, simply, speech.  

In other words, the question here is whether it is proper for the state to impose discipline for conduct, or speech, merely because that speech is offensive.  Or, stated another way, is it proper for the state to hold a person is not fit to practice law based on his or her offensive speech.

According to the traditional analysis under the First Amendment, the answer to that question is no.  But, apparently, things have changed.  Apparently, in New York, expressing an offensive statement raises enough concern about a lawyer's fitness as a lawyer to warrant discipline even if the statement is protected under the First Amendment. 

Evidently, the New York bar seems to have no  tolerance for lawyers who express ideas that some might find to be racist.  But, at what point does a constitutionally protected expression cross the line and becomes so offensive that a lawyer can be disciplined for it?  

In the end, the issue here is whether it is proper for the state to conclude that someone is not fit to be a lawyer based on the fact that they expressed offensive, yet constitutionally protected, views.  The result in this case suggests the answer is yes; and I suggest that is a bad result!

The implication that engaging in offensive expression makes a lawyer unfit to practice law has significant consequences for First Amendment analysis, and I don’t think the decision in the case acknowledges that.

The Legal Profession blog has more information.