Legal Ethics Forum

AALS Section on Professional Responsibility 2020 Annual Meeting Call for Papers Announcement

Confronting the Big Questions About the Regulation of the Legal Profession
Saturday, January 4, 2020
10:30 a.m.-12:15 p.m.
Washington, D.C.

The Association of American Law Schools Professional Responsibility Section is pleased to announce a Call for Papers for the Section’s program at the AALS 2020 Annual Meeting in Washington, D.C.

Program Description:

In its 2016 Final Report, the American Bar Association Presidential Commission on the Future of Legal Services concluded after a two-year inquiry that “technology, globalization, and other forces continue to transform how, why, and by whom legal services are accessed and delivered. Familiar and traditional practice structures are giving way in a marketplace that continues to evolve. New providers are emerging, online and offline, to offer a range of services in dramatically different ways. The legal profession, as the steward of the justice system, has reached an inflection point. Without significant change, the profession cannot ensure that the justice system serves everyone and that the rule of law is preserved. Innovation, and even unconventional thinking, is required.” Some of this change must come in the form of fundamental reconsideration of how we regulate the legal profession, the practice of law, and the delivery of legal services. This program calls for scholars to heed the ABA Futures Commission’s call and apply unconventional thinking to confront the big questions about the future of lawyer regulation.

Topics addressed at the program might include:

What does the market for legal services look like today?
What regulatory changes need to be made to improve the delivery of legal services?
Do the current prohibitions on multidisciplinary practice, nonlawyer ownership of law firms, multijurisdictional practice, and the unauthorized practice of law need to be reconsidered in the interest of improving the delivery of legal services?
What regulations are necessary to ensure ethical delivery of services and consumer protection?
What regulatory changes have been implemented in other countries and what impact have those changes had on the delivery of legal services?

Submission Information:

Papers should be submitted to the section chair, Ben Cooper, via email at [email protected], no later than September 1, 2019, with the subject line: PR Section Call for Papers. 1-2 papers will be selected from the Call for Papers to be presented at the section program along with other panelists, including ABA President Judy Perry Martinez, Professor William Henderson, and Professor Rebecca Sandefur.

Remembering Professor Judith Maute

From the University of Oklahoma:

Judith L. Maute, who served on the Oklahoma University College of Law faculty from 1982 to 2014, passed away July 13, 2019. She taught numerous courses, including Professional Responsibility, Contracts, Lawyering in the 21st Century, Legal Malpractice, Gender-Based Discrimination, and Feminist Jurisprudence.

Professor Maute founded and served for six years as the director of OU Law’s student pro bono program, Students for Access to Justice, now called the Public Interest Law Students Association.

She wrote and lectured extensively, with special focus on legal ethics, legal history, contracts, and dispute resolution. She authored more than 20 publications. Her recent ethics scholarship concentrated on the evolution of lawyers’ pro bono responsibilities, system design for the delivery of legal services to under-served communities, and selection of state court judges.

Active in national academic and professional organizations, Professor Maute chaired the Section on Professional Responsibility and the Section on Women in Legal Education of the Association of American Law Schools and served on the Multi-State Professional Responsibility Test-Drafting Committee and on law school accreditation site inspection teams for AALS and the American Bar Association. She also served on the Oklahoma Bar Association Rules of Professional Conduct Committee, the Access to Justice Committee, and the Standing Committee on Women in Law.

Prior to joining academia, she worked in private practice in Pittsburgh, Pennsylvania, and for the Pennsylvania Human Relations Commission. She graduated from the University of Pittsburgh School of Law in 1978 and earned her LL.M. from Yale University in 1982.

The family will receive friends from 4 to 8 p.m. on Friday, July 19, 2019, and from 11 a.m. to 3 p.m. on Saturday, July 20, 2019, at Havenbrook Funeral Home in Norman. A celebration of life service will be held at 2 p.m. on Wednesday, July 31, 2019, at St. Stephen’s United Methodist Church in Norman.

Notes and flowers may be sent there, or to Elizabeth Maute Cook, 4017 Innsbrook Court, Norman OK 73072.

“Professor Maute was a committed teacher and scholar who was passionate about the responsibility of all lawyers to promote justice and its equal accessibility,” said OU Law Interim Dean Katheleen Guzman. “Her groundbreaking work in legal archeology surfaced the value of appreciating the ‘whole story,’ of assessing law

Please feel free to leave remembrances about Professor Maute on the college’s Facebook page.

Supreme Court Ethics Act

On June 21, 2019, a subcommittee of the U.S. House Judiciary Committee heard testimony on H.R.1057. If enacted, the “Supreme Court Ethics Act” would direct the U.S. Judicial Conference to issue a code of conduct applicable to all federal judges, including Supreme Court Justices. Currently, federal judges other than U.S. Supreme Court Justices are subject to an ethics code.

The witnesses testifying before the subcommittee agreed that a conduct code for Supreme Court Justices would enhance public confidence in the judiciary. And that may be true. But before committing to a code for the Justices it might be worthwhile for an “exploratory drafting committee” to create a few proposed code provisions for examination and discussion. No code will satisfy everybody. But can a code be drafted that will satisfy anyone?

The exploratory committee would initially decide the sticky issue of whether code provisions applicable to the Justices would be mandatory or aspirational. If mandatory, an adjudicatory system must be established to process complaints by the public, litigants, bar, and partisan organizations. Presumably, the severity of the misconduct would dictate the level of discipline.

Enacting a purely aspirational code for the Justices creates its own difficulties.

For example, in testimony before the subcommittee, Professors Frost and Geyh noted the criticism leveled against Justices Thomas and Scalia for speaking at Federalist Society fund-raising events. The criticism was based on the commentary to Canon 4 of the Code of Conduct for (lower court) U.S. Judges that "prohibits" judges from speaking or serving as guests of honor at fund-raisers. Missed by the critics, however, is that the Canon 4 commentary is aspirational and lower court federal judges are not subject to discipline for violating the guideline. That fact is demonstrated by the frequency with which federal trial and appellate court judges speak and receive awards at fund-raising events. For example, in 2007, 2008, 2009, 2010, 2013, 2016, 2017, and 2018, federal judges were honored at the ABA Margaret Brent fund-raising luncheon (sponsorships $2,500 to $20,000; fund-raising ad journal; and $175 lunch ticket). So, even if Justices Thomas and Scalia were subject to the hortatory commentary to Canon 4, they, like their lower court colleagues, could freely speak and serve as honorees at fund-raising events.

Also deserving a top spot on the exploratory committee’s agenda is a code provision dictating the extent to which Supreme Court nominees may testify before the Senate Judiciary Committee concerning past Court decisions and legal, social, and political issues. The substance of that provision would probably depend on who writes it. If the Court or the Judicial Conference write the rule it would likely parrot the “Ginsburg Rule” that nominees should not say anything that might provide a hint, forecast or preview on how they will decide an issue. If the rule is written by Congress, it probably would more closely track current codes of judicial conduct that permit statements of personal opinion on legal, social, and political issues so long as the remark does not constitute a pledge, promise or commitment to rule in a preordained manner.

Drafting a few sample provisions of an ethics code might help further the discussion concerning whether a new code would enhance or detract from public faith in the Court.