Legal Ethics Forum

Prawfsblawg Symposium on Law’s New Frontiers

Prawfsblawg recently hosted Law’s New Frontiers, a symposium focused on the books by Richard & Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts and Gillian K. Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy. The bottom line? Both books are must-reads for those interested in the future of the legal profession. Here are links to the contributions:

Dan Rodriguez, Law’s New Frontiers: an on-line symposium

Phil Weiser, What Susskind can teach law school educators

Andy Perlman, Predicting the future of legal services

Phil Weiser, Hadfield’s anti-institutional innovation agenda and the administrative state

Renee Knake, What is missing from Hadfield’s Rules for a Flat World and the Susskinds’ The Future of the Professions?

Daniel Sokol, The future of law, innovation and disruptive technologies

Andy Perlman, Legal education in the 21st century

Jeff Lipshaw, A response to the Susskinds mostly and Hadfield

Bill Henderson, Losing the scholarly prose

Javier de Cendra, Some reflections on technology, law and legal systems following "The Future of the Professions" and "Rules for a Flat World"

Andy Perlman, Towards the law of legal services: reflections on Gillian Hadfield's "Rules for a Flat World"

Stephen Denyer, Rules for a Flat World: the UK experience

Cross-posted at Professional Responsibility: A Contemporary Approach

Leave Kellyanne Conway Alone

I have an essay in Slate today, explaining why the recent disciplinary complaint -- signed by 15 legal ethics professors -- against Kellyanne Conway is a very bad idea. In a nutshell,

The professors no doubt have faith in the professionalism of the District of Columbia Office of Disciplinary Counsel, but the bar authorities in other states may not always be reliably even-handed or apolitical. It is hardly inconceivable that lawyer discipline might somewhere be used as a weapon against disfavored or minority candidates, or as a means to squelch protest movements and insurgent campaigns. In the 1940s and 1950s, suspected Communists and alleged “fellow travelers” found their law licenses in jeopardy in many states. In the 1960s and 1970s, civil rights lawyers were hauled before the bar authorities in the South. The complaint against Conway is an unfortunate step back in the direction of using lawyer discipline against political enemies.

You can read the whole piece here.

[Cross-posted from The Faculty Lounge]

Ethics Complaint Filed Against Kellyanne Conway

The Washington Post reports that fifteen law professors have filed a complaint against Kellyanne Conway claiming that she engaged in conduct “involving dishonesty, fraud, deceit or misrepresentation.” The article links to the letter sent by the professors to the D.C. Office of Disciplinary Counsel on February 20, 2017.

 

When the Teachers Say the Test Is Too Hard

Deans of 20 California law schools say the California bar exam is too strict.  They want to lower the score needed to pass the test.  

It is odd when the teachers complain the test is too hard. Such complaints should be viewed skeptically when, as in this case, they are raised in defense of the schools as much as the students. The Bar exam is not supposed to benefit either schools or students.  It is supposed to benefit consumers.

I get to the skepticism below, but it is fair and important to note that the Deans' complaint makes a good point. The Bar apparently cannot justify the current minimum passing score either on its own or in comparison to the minimum score in other states.  The Bar appears to concede as much, and that is embarrassing. One can hardly claim the bar protects consumers when one cannot connect the minimum score to consumer protection.  Consumers need protection both from unqualified practitioners and from over-pricing, which might result from needless scarcity.  As with much else in the world of self-regulation, the score may be set where it is because that is where it was set a long time ago.  That is not much of a justification.

The same point applies to the subjects tested on the bar. Wills and succession?  Really?  Some wealthy individuals no doubt need sophisticated planning beyond the grasp of a good computer program, but to test a field in which the modal consumer is as well if not better served (ex ante) by software is perverse.  I am biased, of course, because those are not my fields, and the wills and trusts folks no doubt have their own contrary examples.  The more general point is that few if any lawyers will practice all subjects tested on the bar in the course of their careers.  The array is a by-product of the choice to use a single one-size-fits-all test as a gateway to the profession.  

I take the Bar's comments in the Recorder story to say that some check on competence is needed and that the exam is the best we have right now.  That is fair as far as it goes, but the choice to use such a test inevitably will generate a lot of false posiitve results (people good at taking tests but not practicing law) and false negatives (people who would do well in their chosen field but trip up on fields they will never touch).  No test will be perfect, so the fact of such error is not itself decisive, but one would hope the exam would be structured and administered to minimize such errors.  That would require relating the minimum passing score to a benchmark of competence that has been validated from a consumer protection point of view.  Judging from the Bar's comments, such a benchmark appears to be absent at present.  

Skepticism is justified because schools have an economic stake in pass rates.  The ABA recently took a renewed interest in pass rates as a metric for accreditation, though the house of delegates voted against tightening standards.  (I hope the ABA ultimately adopts this proposal.)  Some schools are nervous about their pass rates because they are nervous about accreditation and, more generally, about survival.  Even apart from the ABA, prospective students may be unwilling to attend schools whose graduates fail too often.  The schools' interest therefore align imperfectly with consumer interests. In some cases the interests of a school may be contrary to consumer interests--both for consumers of legal services and consumers of legal education. The welfare of schools is not a legitimate objective of self-regulation or of the bar.

Skepticism is also justified because recent declines in scores seem unrelated to changes in the exam itself.  If the exam (and its scaling to the MBE) is a constant, it cannot explain variability in scores.  Lowering the minimum passing score therefore risks targeting a symptom rather than a cause.  It is also instructive to compare positions on the question of the minimum score for passing the bar, which some want lowered now without study, with positions on the ABA proposal, which some want studied more.  In each case the concern is that a proposal would be studied into oblivion and buried. The difference in positions is most readily explained by the self-interest of schools.   

A lot of criticism has been leveled at law schools over the past few years, much of which boils down to the contention that we cost too much and do too little.  In some cases the critique is overstated but I think that basic point is sound. We should cost less and do more.  The cost structure of schools makes this a hard problem to address, but that does not make the basic criticism less sound. The debate over minimum passing scores should be viewed in this context. The seeming and to some extent inevitable arbitrariness of the bar exam is a problem that needs to be dealt with.  But we should not allow that problem to divert attention from the problems created by the present model of legal education.

No, Justice Thomas Is Not Going to Be Disqualified in the Travel Ban Case

[cross-posted from The Faculty Lounge]

This article on The Daily Beast argues that Thomas may be recused because of some emails sent by his wife, but it is wrong.

It seems that Virginia Thomas has written some emails to a conservative listserv -- and leaked to the DB  reporter -- expressing support for President Trump.  In one, she wrote:

What is the best way to, with minimal costs, set up a daily text capacity for a ground up-grassroots army for pro-Trump daily action items to push back against the left's resistance efforts who are trying to make American ungovernable?

She went on to complain about the liberal group Daily Action, and asked for suggestion on setting up a comparable organization for activists who "want to join the fray on social media for Trump."

According to the Daily Beast story -- quoting Georgetown Prof. Heidi Li Feldman -- this might lead to  sufficient grounds for "a non-frivolous disqualification motion."  Feldman said that she was "taken aback" by Virginia Thomas's emails, and called them "pretty egregious."  She also linked the email to Trump's executive order on immigration:

It's pretty clear that it's quite partisan and in context given the date of the email and that the tool is meant to rebut activity on the left -- what has the left been really active on? The executive orders. So minimally, I would say the author of the email is thinking of that executive action.

According to the Daily Beast reporter, Justice Thomas's recusal could therefore be required due to his wife's "apparent support for specific activism on specific issues that could come before the court."

I disagree.  Virginia Thomas has been a Republican activist since before her husband was on the Supreme Court.  She has worked at the Heritage Foundation, and she played a role in the Bush 43 transition.  There is no rule or principle that constrains the political activities of judges' spouses.  Marjorie Rendell (3d Circiut) was married to Ed Rendell when he was the governor of Pennsylvania; Stephen Reinhardt (9th Circuit) is married to Ramona Ripston, who was the executive director of the Southern California ACLU for almost 40 years (1972-2011), and Judge Reinhardt declined to recuse himself in at least one case where the ACLU had filed an amicus brief.  In that light, there is nothing remotely egregious about Virginia Thomas's continuing work on behalf of President Trump.

It would be different if Ms. Thomas had played some sort of direct role in drafting or promulgating the EO, but that does not appear to be the case.  Prof. Feldman's line of reasoning is far to attenuated, however, to implicate Ms. Thomas in the specific case.  "What has the left really been active on?" she asks, but the answer is much more than the immigration order.  Nor does the date of the email -- which was February 13 -- connect it specifically to the EO.  Trump's order was issued on January 27, enjoined by the district court on February 4, and ruled upon by the 9th Circuit on February 9.  

Ms. Thomas's email could just as easily have been referring to the confirmation vote on Attorney General Jefferson Sessions (February 7) or Treasury Secretary Steven Mnuchin (February 13), or the then-looming vote on the Labor Secretary nominee Andrew Puzder (since withdrawn).  The most likely interpretation, however, is that Ms. Thomas was referring to the entire Trump agenda, rather than any particular aspect of it.

But even if Ms. Thomas had written to her allies specifically about the EO, that still would not be a sufficient basis for recusal under 28 U.S.C. 455 (a), which requires disqualification when the justice’s “impartiality might reasonably be questioned.”  Simply stated, a judge or justice cannot be disqualified on the basis of a spouse’s general political activity. In the Twenty-First Century, it is just unreasonable to expect judicial spouses to keep their opinions to themselves or to refrain from working for causes in which they believe.  It is consequently unreasonable to expect judges or justices to disqualify themselves from cases because they have ramifications for a spouse's political party.

Even if a motion to disqualify Justice Thomas would be non-frivolous, as Prof. Feldman says, it would still be futile.  The Supreme Court practice is to refer all recusal motions to the affected justice, who then makes the decision himself or herself.  Justice Thomas has already made it quite clear that he will sit on politically charged cases notwithstanding his wife's activism, the ACA case (NFIB v. Sebelius) being the prime example.

Wendel & Luban on philosophical legal ethics

Two of my favorite legal ethics scholars -- Brad Wendel and David Luban -- have joined forces to write an accessible history of philosophical legal ethics.  Breaking down the relatively short (40-year) span of serious theoretical work in the field into two waves, the first grounded in moral philosophy and the second grounded in political philosophy, Wendel and Luban provide a helpful introduction to how scholars have criticized and defended the lawyer's role against broader normative frameworks. I was especially interested in the treatment of the religious-lawyering perspective, championed most famously by Tom Shaffer.  The authors conclude:

A Christian lawyer may wonder, for example, whether it is possible to be a lawyer without being involved in the fallenness of all human institutions, including the law. Since the answer to questions formulated in these terms would themselves be dependent upon other theological commitments, the influence of the religious-lawyering literature was somewhat limited. Its wider impact depended upon its translation into what Rawls would call public reasons, in which case it risked losing its distinctive prophetic voice.

They're undoubtedly correct to characterize the influence of the religious-lawyering literature as "limited" (at least for now), but I'm not entirely certain that those limits are strictly a function of a failure to undertake a Rawlsian translation.  That's a longer conversation.  In the meantime, you should check out the paper - it is worth your time.

Judge Gorsuch and Legal Ethics

Supreme Court nominee Neil Gorsuch may have a greater appreciation for the fine points of legal ethics than most nominees since he taught the subject as a Visiting Professor at Colorado University Law School in 2012, 2013, 2015, and 2016. His 2012 syllabus for “Legal Ethics and Professionalism” is here.