Harvard Law Review blog essay on judicial ethics for the Supreme Court

The Harvard Law Review has published a very short blog essay titled "Enforceable Ethics for the Supreme Court" on the recent discussion about the need for an, you guessed it, enforceable code of ethics for the Justices of the Supreme Court.  You can read it here. 

US Supreme Court rejects appeal from Trump-affiliated attorneys in Michigan sanctions case

 Not surprisingly, the US Supreme Court has denied review of the sanctions imposed on Trump attorneys in Michigan.  Jurist has the story here.  

For all my blog posts related to Trump lawyers go here.

UPDATE 2-21-2024: MSNBC has the story here.

More commentary on the Supreme Court's code of conduct - UPDATED

 A few days ago I reported that the US Supreme Court adopted a code of conduct and that it was immediately generally criticized as inadequate.  See here.  I also posted links to the story and many of those critical reviews.

As expected, the criticism kept coming.  Here are a few more links: 

Supreme Court fails to quiet ethics critiques with new code of conduct (Courthouse News Service)

The Supreme Court’s new ethics code is a joke (Vox)

US Supreme Court adopts new ethics code (Jurist)

SCOTUS Ethics Code Is Just PR (Bloomberg audio podcast)

Código de Conducta del Tribunal Supremo federal es inútil (Microjuris)

Reaction from the Legal Profession to the U.S. Supreme Court’s Code of Conduct (2Civility)

Reaction from the Legal Profession to the U.S. Supreme Court’s Code of Conduct (Lex Blog)

UPDATE 11/20/23:  The Supreme Court’s new ‘code’ does nothing to enhance ethics (The Hill)

UPDATE 11/21/23:  Today I saw an article that "defends" the new code.  It is the only article I have seen that describes the code positive terms.  It is called The Supreme Court’s new ethics rules affirm the rule of law and you can find it here.

UPDATE 11/23/23:  The Supreme Court is not necessary (The Hill), which starts saying "The Supreme Court’s new ethics code shows that the Court values its power more than its integrity. The justices don’t even hide it."

UPDATE 11/24/23:  The SCOTUS blog has a comment here.

Supreme Court adopts code of conduct, which is immediately widely criticized as inadequate

In response to mounting criticism over the conduct of some justices, the Supreme Court announced that it has adopted an ethics code.  Yet, now the criticism has turned to the content of the new code, which many have concluded is simply irrelevant because it has no enforcement mechanism, because it actually does not impose any duties and because it creates what one commentator called "an entirely toothless standard for disqualification".  Rather it is an aspirational document that essentially amounts to saying that the justices should try to do the right thing.

Of note is the fact that the code does not use the typical language used in codes of professional conduct when describing duties.  The drafters of the Model Rules of Professional Conduct, for example, avoided using the word "should" when describing duties because that word is ambiguous.  As you probably know, when describing a mandatory duty, the drafters use the word "shall" and when the duty is discretionary, the drafters use the word "may."  Yet, in the Supreme Court's code, the word "should" is the word constantly used to describe the expected conduct, while the word "shall" is used exactly zero times.  So, are the provisions in the code mandatory or simply suggested?  Given how all other codes of conduct are written, it is fair to assume, this one is merely suggested.  

So what does the new code add to what we had before?  Words on a piece of paper.  That's all, apparently.  The "unwritten rules" are now written.  But don't just take my word for it, take a look at the introduction to the code which states that it "largely represents a codification of principles that we have long regarded as governing our conduct."

Some are calling that a good first step, or some progress. Senate Judiciary Committee Chairman Dick Durbin said it "falls short."  

You can read the text of the code itself here or here.

There is news and commentary all over, but here are some links, in order of publication.

Courthouse News Service

The Hill

Politico

NPR

MSNBC

The Guardian

Faughnan on Ethics

The Guardian, again

Howe on the Court

SCOTUS blog

NPR (audio), also here

Above the Law

Law Dork

Legal Ethics Roundup

Politico, again

Otherwise

Bloomberg law (audio)

The Nation ("The Supreme Court’s New Ethics Code Won’t Stop the Corruption")

MSNBC ("Why the Supreme Court’s new ethics code falls far short")

Article: "The Supreme Court’s excuses for ethics violations insult our intelligence"

 Steven Lubet (Northwestern) has published a short article called "The Supreme Court’s excuses for ethics violations insult our intelligence." 

Richard Painter: "I did Alito’s ethics prep for his confirmation hearing. His new excuses are nonsense."

Richard Painter, the chief White House ethics lawyer from 2005 to 2007 who helped prepare Justices Roberts and Alito for their confirmation hearings, has published an op-ed commenting on "what went wrong?" or, more specifically, "Why today do so many Americans have far less confidence in the ethics of the Supreme Court than we did in 2006?"

You can read the full article here.  

Calling some of Alito's arguments "utter nonsense," Painter answers the question, partly, by concluding that "[t]he problem is that the justices interpret federal statutes that apply to themselves and ethics norms for judges as they see fit. And when their actions depart from generally accepted ethics practices, they claim that as an independent branch of government they can do whatever they want."

And then concludes as follows:

The Supreme Court cannot be the only branch of government without accountability to the other two. Just because the justices hold themselves to a lower ethical standard does not mean the public does. Reform must come, or Americans’ confidence in the court will plunge still further.

And that Congress can fix the issue by passing legislation installing an ethics lawyer and an inspector general for the Supreme Court. The inspector general would investigate and report to Congress on alleged violations of ethics rules by justices and other Supreme Court employees.

Supreme Court to address issues related to attorney-client privilege - UPDATED

January 9, 2023

If you are reading this blog, you probably know already that the US Supreme Court agreed to hear a case on whether a communication involving both legal and non-legal advice is protected by the attorney–client privilege if obtaining or providing legal advice was one of the significant purposes behind the communication.  The case is called In re Grand Jury, and the oral argument is today!

Here are a few links with commentary.  I will continue to update the list as more commentary is published after the oral argument.

SCOTUS Blog

Presnell on Privileges

UPDATE (1-13-2023):  Here are a few more links to stories that discuss the case:

Justices debate test for attorney-client privilege when lawyer’s advice has multiple purposes

ABA Law Journal:  "Law firm's more protective test for attorney-client privilege 'is a big ask,' Kagan says"

The National Law Review: "The Scope of Attorney-Client Privilege Over Dual-Purpose Communications"

The National Law Review:  "U.S. Supreme Court Is Asked to Adopt the ‘Significant Purpose’ Test to Permit the Withholding of Dual-Purpose Communications as Subject to the Attorney-Client Privilege"

US Supreme Court to decide case on attorney-client privilege -- UPDATED

December 10, 2022

The United States Supreme Court has agreed to hear a case that raises the issue of whether a communication involving both legal and non-legal advice is protected by attorney–client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.

The case is called In Re Grand Jury.  You can find a summary and links to relevant documents here.

The ABA has filed an amicus brief (available here) in which it urges the Court to consider client-lawyer communications privileged, even if the purpose of some of those communications is not to request or give legal advice.  The ABA Journal has a short article discussing the case and the brief here.

The blog Presnell on Privileges has a comment here.

UPDATE: Dec 18, 2022

Presnell on Privileges has more commentary on the case here.

Supreme Court reviewing cert petition in mandatory bar membership case

In the last couple of years we have seen a number of challenges in different states to mandatory bar membership rules.  I have posted a few stories on the subject here.

Back in June 2020, the US Supreme Court denied review to a case attacking the rule in Wisconsin. The Court had also declined to grant review in cases involving the state bar in North Dakota.

Yet, I just heard that the Court is in the process of deciding whether to review the question based on a constitutional challenge to Oregon’s mandatory bar membership and dues.  

Stay tuned!

US Supreme Court denies review of mandatory bar membership case

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional.  See here and here for example.  My most recent post on this was on the case from Wisconsin in which two Wisconsin attorneys argued that a requirement to be members of the bar association and pay dues violated their First Amendment rights. See here.

Last Monday, the US Supreme Court on Monday denied a request to hear that Wisconsin case.  Justices Thomas and Gorsuch dissented.

For more on the story go to the SCOTUS blog, here, and to Courthouse News Services, here.  Jurist has a short report here.

Recent news about the debate on qualified immunity: the Institute for Justice joins the fight

As you know, the doctrine of qualified immunity recognizes a defense for certain government officials from liability for injuries caused by their conduct.  It applies, for example, to prosecutors when they engage in investigative or administrative tasks, which is often limited to conduct before an indictment.  And, of course, it applies to many other government officials when engaging in their official capacities.

The doctrine exists to provide protection to those officials so they can perform their duties without fear that their decisions will be later questioned or second-guessed by courts, a position that is justified by the principle of separation of powers.

The doctrine, however, is not particularly old and it is not universally accepted.  The Cato Institute has referred to it as "an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s" and as "a court‐​confected doctrine that provides rights‐​violating police and other government officials with an unlawful shield against accountability for their misconduct."

To do something about this, the Cato institute launched a strategic campaign to challenge the doctrine on March 1, 2018, the centerpiece of which has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. In addition, the Institute has organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity.  This "alliance" includes the ACLU, the NAACP Legal Defense Fund, the Alliance Defending Freedom and the Second Amendment Foundation.

I am writing about this today because yet another group has officially announced it will join the campaign.  About two weeks ago (on Feb 15), The Wall Street Journal published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the battle against qualified immunity.  You can read it here if you have a subscription.

For more on the CATO Institute's position on this issue go here.

US Supreme Court finds for inmate in claim of ineffective assistance of counsel

The US Supreme Court announced a decision today in which it expanded the notion of ineffective assistance of counsel.  The court ruled for Gilberto Garza Jr., who waived his right to appeal in two plea agreements, then changed his mind and told his lawyer to file an appeal.  The lawyer did not file the appeal notice because of the waiver, and the deadline passed. In a petition for post-conviction relief, Garza argued that his lawyer had provided ineffective assistance.

To prove ineffective assistance, defendants must show that their lawyer’s representation fell below an objective standard of reasonableness, and that the deficiency was prejudicial to the defense.

The issue in the case was whether Garza was entitled to a presumption that his lawyer’s failure to file the notice caused prejudice, a presumption that had been recognized in a 2000 case in which there was no appeal waiver.

Idaho courts had ruled against Garza, finding that he could not make the necessary showing that the deficient performance at issue resulted in prejudice.

Reversing that ruling, the Supreme Court ruled 6-3 that this requirement goes against the rule that prejudice to the defendant should be presumed “when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued.”

The ABA Journal has a story here.

Courthouse News Service has a story here.

Supreme Court issues opinion on federal cap on attorneys' fees

The US Supreme Court recently issued its opinion in Culbertson v. Berryhill holding that a federal law imposing 25 percent cap on attorney’s fees in Social Security cases applies only to fees relating to court proceedings rather than all fees incurred. 

You can read the opinion here.

The SCotUS blog has a comment on the opinion go here, a comment on the oral argument here and more documents and links here.

Courthouse News has a short summary here.

Louisiana Supreme Court reverses conviction applying McCoy v Louisiana (in which the US Supreme Court had reversed the Louisiana Supreme Court)

As you may recall, back in May the US Supreme Court issued its opinion in McCoy v Louisiana, an eagerly awaited case on whether an attorney has the authority to concede a client's guilt in order to seek leniency at sentencing.  The Court held that the attorney did not have such authority and that because he acted against the client's will, the conduct constituted a reversible error.  For reasons I discussed elsewhere, I consider McCoy to be only a partial victory, but that is another story you can read about here.

In McCoy, the Louisiana Supreme Court had held that the attorney's concession of guilt had been a tactical decision within his authority; but the US Supreme Court held that type of decision related to the objective of the representation and therefore belonged to the client and reversed.

Now comes news that the Louisiana Supreme Court learned the lesson and has reversed a conviction in a new case that presented the same issue.  The case is called Louisiana v Horn and you can read the opinion here.

The Legal Profession blog has a summary here.

Short comment on Judge Kavanaugh and the Duty of Candor

Over at the Legal Ethics Forum, Prof. Milan Markovic (Texas A&M) has posted a short comment on whether Judge Kavanaugh i) had a duty to be candid in his nomination hearings and ii) he might have violated this duty.   You can read it here.

Supreme Court decides McCoy v Louisiana

Last year I posted comments on a case then before the Supreme Court which I thought was important on the issue of client autonomy and allocation of decision making authority within the attorney-client relationship.

The case was decided back in May but I hadn’t had a chance to read the decision yet.  Well, I just finished reading it, and I am happy to report that it was decided just like I suggested it should.  Here are my initial thoughts.

First, a little background.  The case is McCoy v. Louisiana in which a defendant in a capital murder case appealed his conviction arguing ineffective assistance of counsel based on the fact that his lawyer conceded his guilt over the defendant's objection.  You can find all the documents related to, and more information on, the case at the SCOTUSblog here.

The relevant facts of the case are as follows.  Two weeks before trial, the defendant’s lawyer (Larry English) told his client, McCoy, that he thought the evidence against McCoy was overwhelming and that, absent a concession that McCoy was the killer at the guilt stage, a death sentence would be impossible to avoid at the penalty phase.  English, therefore, decided to concede that McCoy committed the murders in an attempt to convince the jury not to impose the death penalty.  McCoy did not agree, and told English not to make that concession. Instead, McCoy wanted English to emphasize his defense based on an alibi - a story that English did not believe was true. Based on their disagreement, McCoy asked to court to terminate English’s representation but the court refused.

At the beginning of his opening statement at the guilt phase of the trial, English told the jury that McCoy killed the victims.  McCoy objected and addressed the judge outside the presence of the jury.  Yet, the judge reminded McCoy that he was being represented by English and told him that “the court would not permit any other outbursts.”  In his closing argument, English again reiterated that McCoy was the killer.

After he was convicted and sentenced to death, McCoy unsuccessfully moved for a new trial, arguing that the trial court violated his constitutional rights by allowing English to concede McCoy committed three murders over McCoy’s objection. Then, on appeal, the Louisiana Supreme Court affirmed the trial court’s ruling because, according to the court, counsel reasonably believed that admitting guilt afforded McCoy the best chance to avoid a death sentence.

The Louisiana Supreme Court also concluded that English’s refusal to maintain McCoy’s innocence was necessitated by Louisiana Rule of Professional Conduct 1.2(d), which provides that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent” because, according to the court, presenting McCoy’s alibi defense would have forced English to violate his duty against presenting false evidence.

In holding the way it did, the Louisiana Supreme Court did not follow the analysis of three other state Supreme Courts that have addressed the same issue.  (See, Cooke v. State, 977 A.2d 803 (Del. 2009), State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000), and People v. Bergerud, 223 P.3d 686 (Colo. 2010), all of which held that although defense counsel is free to develop defense theories based on reasonable assessments of the evidence, counsel cannot usurp the fundamental choices reserved for criminal defendants.

The US Supreme Court granted review to solve the division of opinion among state courts and agreed with the majority of those state courts that counsel may not admit a client’s guilt over the client’s objection.

If you read my previous posts on this case, you know I think this was the right decision.

First, the Louisiana Supreme Court was wrong when it held that English’s conduct was justified because otherwise he would have used false evidence.  As the Court explains, the fact that English did not believe McCoy’s account does not mean that pursuing McCoy’s preferred defense would constitute using false evidence.  Louisiana’s ethical rules might have prevented English from presenting McCoy’s alibi evidence if English knew false evidence or perjury was involved, but English did not have such knowledge.  According to the rules, mere suspicion (or even a reasonable suspicion) that a client might be lying is not enough to trigger the duties in the rules related to the duty of candor.

More importantly, on the main issue before the Court, the Court held that, as stated in rules of professional conduct, it is the client – not the lawyer – who has the right to make decisions related to the objective of the defense:

. . . Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.

. . . When a client expressly asserts that the objective of “his defense” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.  . . . see ABA Model Rule of Professional Conduct 1.2(a) (2016) (a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”). 

For these reasons, it was improper for English to override McCoy’s decision.  McCoy’s decision may have been a bad decision, but it was a decision he had the right to make.

Having decided that the lawyer’s admission of the client’s guilt over the client’s express objection the conduct of the attorney was improper, the Court then decided that it was a violation of the client’s Constitutional rights and that, therefore, McCoy must be granted a new trial. 

In terms of the professional responsibility issue, this decision is correct, and consistent with precedent and logic.   The rules reserve the right to decide to the client.  The lawyer took away the right when he acted against the client’s instructions.  Thus, the lawyer acted improperly.

Yet, as you may recall, I was also interested in this case because I wanted the court to confront its decision in Florida v. Nixon, in which the court held that a lawyer can make a decision for the client if the client does not object.

Interestingly, Justice Ginsburg wrote the opinion in both cases, although  I guess that should not be surprising.  I assume that knowing the McCoy case would force the Court to address what it decided in Florida v Nixon, she would want to keep control of the discussion to protect her opinion in that case.

I was hoping the Court would use McCoy to admit its decision in Florida v. Nixon was wrong, but that did not happen.  Justice Ginsburg was very careful to distinguish the two cases:

Florida v. Nixon . . . is not to the contrary. Nixon’s attorney did not negate Nixon’s autonomy by overriding Nixon’s desired defense objective, for Nixon never asserted any such objective. Nixon “was generally unresponsive” during discussions of trial strategy, and “never verbally approved or protested” counsel’s proposed approach.  . . . Nixon complained about the admission of his guilt only after trial. . . . McCoy, in contrast, opposed English’s assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. . . . If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way. 

I understand how the facts in the two cases are different, but I still think that the lawyer in Florida v. Nixon negated the client’s autonomy just as much as the lawyer in McCoy.  The fact that the client did not object, to me, does not justify a different result.

The decision in Florida v. Nixon is not as clear as Justice Ginsburg makes it sound today.  It is not clear whether the Court found that the lawyer had provided ineffective assistance of counsel (a) because, although the decision was for the client to make, the lawyer could make it because the client was incapable of communicating with the lawyer or (b) because the decision was for the lawyer to make because it was "tactical" in nature.

The first option goes against the rules of professional conduct.  The second is based on the position that conceding guilt to avoid the death penalty relates to “means” rather than objectives of the representation and therefore falls under the authority of the attorney.

Do you see the problem?  If the decision in Florida v. Nixon was based on the second argument (and that is what it seems to be the case), how can Justice Ginsburg now be saying in McCoy that the same decision is exclusively for the client to make? 

Once we get to that point, the only way to justify the decision in Nixon is to say that the fact that the client was unresponsive changed the character of the decision, making it possible for the attorney to make the decision for the client.  Yet, this is not what the rules of professional conduct say because the client had diminished capacity and the lawyer is not supposed to make decisions for the client.

The bottom line for me is this.  If we are going to accept that, as the Court concludes in McCoy, “the decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense–a right that personally belongs to the accused,” then we should conclude that the decision in Florida v. Nixon was wrong and should be overturned.

Thus, for me, McCoy is an incomplete victory.  It is the correct result for McCoy; but it did not correct the result in Nixon.

Finally, it should be noted that the three justices considered to be the most conservative (can you guess who they are?) dissented in McCoy, arguing that the Court should not have granted review in the case because the issue presented was so rare that it did not merit discussion by the court.

On the merits of the question, however, they argued, among other things that attorney English did not admit that McCoy was guilty of murder. Instead, they argued, he admitted that McCoy killed the victims.  Based on this distinction, they argued that English did not concede guilt of the crime, but rather, conceded just one of its elements, and they questioned what would be the decision if a lawyer concedes guilt of a lesser included offense.

Finally, they wondered what will happen if petitioner is retried, stating that “it will be interesting to see what petitioner’s . . . counsel . . . will do. It is a safe bet that no attorney will put on petitioner’s conspiracy defense.”

These last two questions might be interesting, but they are irrelevant.  The fact of the matter is that the attorney acted improperly in making a decision that is reserved for the client to make.  The real issue in the case was whether that conduct amounted to ineffective assistance of counsel.  The majority opinion found that it did; the dissenters did not rebut that conclusion.

You can read the full opinion here.

Supreme Court decides McCoy v Louisiana, finding ineffective assistance of counsel when attorney conceded guilt over client's objection

Back in October I wrote a comment on McCoy v. Louisiana, a case before the US Supreme Court in which a Louisiana death row inmate argued he received ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection. (I later posted some updates and relevant links here.) 

In my original post, I argued, among other things, that the case could result in expanding the reach of an older case which I don’t like (Florida v. Nixon).  In Nixon, the Court found that the lawyer had not provided ineffective assistance of counsel based on a distinction between "conceding guilt" and "pleading guilty."   I have never been comfortable with Florida v Nixon for many reasons, the most important one of which is that I don't see the difference between conceding guilt and pleading guilty.  In the end, the Court allowed an attorney to make a fundamental decision, which is explicitly reserved for the client to make, without client consent.

McCoy had the potential to make things worse because the Court was asked to find no ineffective assistance of counsel even if an attorney decided to concede guilt over the express objection of the client. 

Yet, I am pleased to report that the Court found for the defendant, holding that

“a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reason- able doubt.”

I definitely think this is the right decision in this case.  I just wish the Court had used the opportunity to find it had erred in Nixon (and to overrule it) too.

You can read the full opinion here.  The SCotUS blog has an analysis of the opinion here and NPR has a short comment here.

US Supreme Court hears oral argument in McCoy v Louisiana; Justice Sotomayor compares it to an ethics class in law school -- UPDATED

Back in October I wrote a comment on McCoy v. Louisiana, a case before the US Supreme Court in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  During the argument Justice Sotomayor said the case sounded like a law school hypo.  And she is right (for all the reasons I mentioned in my comment).  Also, according to the ABA Journal, Justice Neil Gorsuch was among the justices who appeared to see merit in the defendant's case.

The ABA filed an amicus brief (see here).

The oral argument is available here.

Bloonberg Law has a story on the case here.

The New York Times has an article on the case here.

The SCotUS blog has a summary and analysis of the case here.

NPR's coverage of the case is here.

Above the Law has a post on the case here.

I am very interested in how the Court will decide this case and, particularly, how it will treat Florida v. Nixon.  (Again, see my comment above).

UPDATE 1/26/18: Ethical Grounds has a comment on the case here.

ABA files amicus brief arguing that conceding guilt over client's objection constitutes ineffective assistance of counsel

A couple of weeks ago, I posted a comment on McCoy v. Louisiana, a case before the U.S. Supreme Court in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  You can find my comment here.  Today, I learned that the ABA has filed an amicus brief in support of the appellant.  As I argued in my original comment, I agree with this view.  The ABA explained its position in a press release.  You can also read the full brief here.

Court of Appeals rejects appeal by lawyer who had been ordered to pay $4.2 million as sanction for sending unsolicited faxes to potential clients

In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Supreme Court held that a state can not ban a lawyer from sending targeted letters to potential clients in part because the invasion of privacy involved in receiving the unsolicited letter was minimal.  As someone later put it, the trip from the mailbox to the trash can is a short one. 

You would think the same could be said about a fax (technology that is not as common these days), but in a 2013 opinion, the 7th Circuit found that unsolicited faxes sent by a Chicago lawyer to potential clients were advertisements covered by the Federal Telephone Consumer Protection Act, which imposes penalties for sending faxes without an opt-out provision.  As a result, the lawyer was ordered to pay $500 for each of his 8,430 faxes, amounting to $4.2 million.

The case has been going up and down to and from the Court of Appeals since then and just recently it was reported that the Court has denied the most recent appeal.  Go here for more details.