Legal Ethics Roundup: Attacks On Law Firms, Ethics Of Lawyer NDAs, Sanctions On Fake Cases, ABA Rule Of Law & More

Ed. note: Please welcome Renee Knake Jefferson to the pages of Above the Law. Subscribe to her Substack, Legal Ethics Roundup, here.

It was another intense week of headlines about legal ethics. So like last week, your top ten headlines list is packed with extras (see #5 and #10), making it a total of fifteen. Let’s dive right in.

Highlights from Last Week – Top Ten Fifteen Headlines

#1 Michigan Attorney Discipline Board Sets Hearings for Lawyers in 2020 Election Fraud Case. From the Detroit News: “A group of seven lawyers who were involved in an unsuccessful lawsuit to overturn Michigan’s 2020 presidential election will face a May 7 misconduct hearing in Detroit, according to notices sent out last week by the state’s Attorney Discipline Board. … The hearing could lead to penalties, such as a public reprimand or license suspension, for some of the most vocal proponents of the past legal effort to reverse Trump’s 2020 defeat, including Texas lawyer Sidney Powell and Georgia lawyer Lin Wood. In addition to Powell and Wood, lawyers Scott Hagerstrom of Michigan, Julia Haller of Washington, D.C., Brandon Johnson of Washington, D.C., Howard Kleinhendler of New York and Gregory Rohl of Michigan are also scheduled to participate in the hearing on May 7, according to the Attorney Discipline Board notices.” Read more here. And revisit LER Bonus Content #4 for more background on this case.

#2 DC Bar Election Makes National Headlines Over Targeting by Trump Allies. From NBC News: “Two of President Donald Trump’s allies have launched bids for leadership roles with the D.C. Bar Association, an under-the-radar effort that would give them more control over the influential legal group. The push comes amid bar associations’ confrontations with the Trump administration, and some federal attorneys have looked to their state groups for ethical guidance amid Trump’s rapid reshaping of government. Bradley Bondi — a lawyer who is Attorney General Pam Bondi’s brother — and Alicia Long — a deputy to Ed Martin, Trump’s interim U.S. attorney for the District of Columbia — are running for president and treasurer. The election runs from April to June, according to the organization’s website. While the general public may not pay much attention to bar associations, lawyers do. The nongovernmental groups decide who gets to be a lawyer — and who gets to stay a lawyer when misconduct allegations are involved.” Read more here.

#3 “Senate Judiciary Democrats Seek Probe of D.C. U.S. Attorney Ed Martin.” From the Washington Post: “Democrats on the Senate Judiciary Committee have lodged a formal complaint against acting D.C. U.S. attorney Ed Martin with the office that handles attorney discipline, seeking the suspension of his law license or other penalties. ‘Martin has abused his position in several ways,’ committee Democrats, led by Sen. Dick Durbin (Illinois), wrote in a letter sent Thursday to a legal disciplinary office, called the Office of Disciplinary Counsel. Those abuses include Martin’s dismissal of charges against a pardoned Capitol riot defendant he represented before taking office and his ‘using the threat of prosecution to intimidate government employees and chill the speech of private citizens,’ the senators alleged. Durbin has complained to D.C. authorities about alleged wrongdoing in the legal profession before. After a request from him in 2021, the D.C. Office of Disciplinary Counsel launched a probe of Jeffrey Clark, who had served in President Donald Trump’s Justice Department, over alleged ethical violations he committed in advancing false claims of election fraud after the 2020 presidential election. A panel recommended in August that Clark’s license be suspended, though the case is still pending.” Read more here (gift link).

#4 “Emil Bove Faces DOJ Ethics Complaint Over Mayor Adams Dismissal.” From Bloomberg Law: “A watchdog organization is calling on the Justice Department’s attorney misconduct office to investigate acting Deputy Attorney General Emil Bove’s ‘partisan’ order to dismiss charges against New York’s mayor. Bove potentially violated multiple New York attorney ethics rules and DOJ policies by directing prosecutors to partake in ‘what appears to be a corrupt quid pro quo deal,’ the Campaign for Accountability said in a complaint filed Monday with the department’s Office of Professional Responsibility. The complaint, which echoes similar accusations made by two Democratic senators Feb. 27, puts Bove in a somewhat awkward situation of possibly facing a probe from an office he oversees.” Read more here.

#5 The Ethics of White House Attacks on Law Firms. Four headlines for #5. First, from the New York Times: “President Trump signed an executive order on Thursday seeking to severely punish the law firm Perkins Coie by stripping its lawyers of security clearances and access to government buildings and officials — a form of payback for its legal work for Democrats during the 2016 presidential campaign. With the order, Perkins Coie becomes the second such firm to be targeted by the president. Late last month, he signed a similar memorandum attacking Covington & Burling, which has done pro bono legal work for Jack Smith, who as special counsel pursued two separate indictments of Mr. Trump. While the Covington memorandum sought to strip clearances and contracts from that firm, the Perkins Coie order goes much further, seeking to also limit its lawyers’ access to federal buildings, officials and jobs in a way that could cast a chilling effect over the entire legal profession.” Read more here (gift link). Second, from Bloomberg Law: “Revoking Security Clearances: How Bad Could It Get for Lawyers?” And what about their clients? Read more here. Third, from Reuters: “Trump’s orders targeting law firms raise constitutional concerns, experts say.” Read more here. Fourth, from Vox: “Trump is shredding the First Amendment under the guise of ‘national security.’ Trump’s retribution campaign is now targeting prominent Democratic lawyers — with broad implications for every American.” Read more here.

#6 “US Judiciary Relaxes Ethics Standard on Clerks Seeking Political Jobs.” From Reuters: “A U.S. judicial panel on Friday relaxed ethics guidance it issued just six months ago advising federal judges to restrict their law clerks from seeking post-clerkship employment with political organizations to make clear judges retain ‘broad discretion’ to decide whether to do so on a case-by-case basis. The U.S. Judicial Conference’s Committee on Codes of Conduct modified advisory opinions it had updated in September addressing what types of political activities are permissible or prohibited by judicial employees and ethics issues concerning future employment by law clerks.” Read more here.

#7 Confidentiality Exception Exists if Lawyer is Victim of Client Fraud, Violence, Theft. From the ABA Journal: “It’s a common scam—someone poses as a potential client online, with the nefarious goal of getting a lawyer to cash and refund a fraudulent check. Reporting the person to law enforcement does not violate an attorney’s duty of confidentiality because there’s an implicit exception when the lawyer is the victim of a client or a potential client’s crime, according to an ethics opinion published Wednesday by the ABA’s Standing Committee on Ethics and Professional Responsibility. The exception also applies to acts of violence and theft, according to Formal Opinion 515.” Read more here.

#8 Lawyer Sanctioned $2,500 and Required to Take Continuing Legal Education on AI and Legal Ethics for Citing Fake Cases. From Lawsites: “‘My dear Miss Glory, the Robots are not people. Mechanically they are more perfect than we are; they have an enormously developed intelligence, but they have no soul.’ With that quote from R.U.R. (Rossum’s Universal Robots), a 1920 science fiction play by Czech writer Karel Čapek, U.S. District Judge Kai N. Scott, in the Eastern District of Pennsylvania, eases us into yet another instance of a lawyer in trouble for filing hallucinated cases. It was just two days ago that I wrote about another such case, one in which the judge let the lawyer off the hook, calling his citation errors an ‘honest mistake.’ Not so in this case, where the judge, having concluded that the lawyer, Raja Rajan, ‘outsourced his job to an algorithm,’ imposed a $2,500 sanction and ordered him to complete a CLE program on AI and legal ethics, all for violating Rule 11 of the Federal Rules of Civil Procedure, which requires lawyers to certify the veracity of their court filings.” Read more here.

#9 ABA Issues Another Statement on the Rule of Law and the Ethical Obligations of Lawyers. From the American Bar Association website:

Three weeks ago, the American Bar Association spoke to you about values that guide us. We called upon every lawyer to insist that the government adhere to four major principles of law that have guided our country for over 200 years: Defending Judges and Courts, Acknowledging the Role of the Courts, Adhering to the Rule of Law, and Respecting the Separation of Powers and the three co-equal branches of government with distinct duties and responsibilities. These principles have been bedrocks of American democracy. The ABA does not shrink from standing in support of each of them.

Since that time, government actions evidence a clear and disconcerting pattern. If a court issues a decision this administration does not agree with, the judge is targeted. If a lawyer represents parties in a dispute with the administration, or if a lawyer represents parties the administration does not like, lawyers are targeted. We issued statements standing up for these four key principles, and a government official targeted us by instructing some of its lawyers not to attend ABA meetings or participate as speakers. These actions highlight escalating governmental efforts to interfere with fair and impartial courts, the right to counsel and due process, and the freedoms of speech and association in our country. …

We speak today on behalf of the legal profession and its members who seek to live by the oath each took upon admission to the bar. This is not something we do lightly nor is it the first time we have spoken in opposition to actions against an administration, regardless of political party. We sued or opposed policy proposals of the last few administrations when they failed to adhere to the rule of law or interfered with access to justice, and we are doing the same with the current administration. We are nonpartisan. We stand for the rule of law. We stand for the vital role of our courts and the essential job that lawyers do every day throughout our country. We have stood on this ground for many years.

We reject efforts to undermine the courts and the profession. We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not. Words and actions matter. And the intimidating words and actions we have heard must end. They are designed to cow our country’s judges, our country’s courts and our legal profession. Consistent with the chief justice’s report, these efforts cannot be sanctioned or normalized.

There are clear choices facing our profession. We can choose to remain silent and allow these acts to continue or we can stand for the rule of law and the values we hold dear. We call upon the entire profession, including lawyers who serve in elected positions, to speak out against intimidation. We acknowledge that there are risks to standing up and addressing these important issues. But if the ABA and lawyers do not speak, who will speak for the organized bar? Who will speak for the judiciary? Who will protect our system of justice? If we don’t speak now, when will we speak?

Read the full statement here.

#10 Gloria Allred’s Clients Question Tactics Like NDAs; Across the Pond, UK Regulators Include NDA Misuse by Lawyers Among Proposed Ethics Reforms. Two headlines for #10. First, from the Wall Street Journal: “For decades, Allred has hugged and comforted her clients while they give tearful accounts of their alleged abuse at press conferences. But that public image is often at odds with the lawyer’s behavior behind the scenes. There, clients said, Allred and her firm ignored their wishes and pushed them to agree to confidential settlements.” Read more here (gift link). Second, from the Legal Services Board website: “New regulatory measures to strengthen ethical standards in the legal sector have been proposed today, to initiate a significant shift in how lawyers’ ethics are taught, overseen and supported in workplaces. The Legal Services Board (LSB) is seeking views on how regulators support lawyers to fully understand and uphold their ethical duties throughout their careers. High standards of ethical conduct are crucial to ensuring that legal services retain the trust and confidence of consumers, continue to underpin justice and the rule of law, and can truly support and facilitate economic growth. The proposals are based on substantial evidence of where lawyers are failing to meet the ethical standards expected of them. Examples range from unintentional oversights to more serious misconduct. This includes misleading courts, using Strategic Lawsuits against Public Participation (SLAPPs) and misusing non-disclosure agreements (NDAs). The proposals address areas such as legal education, training and regulators’ codes of conduct. They would require regulators to make sure that ethics are at the core of how lawyers behave and act throughout their careers.” Read more here.

Where’s the Rest of the Roundup?

Revisit the “Welcome Back Edition” for an explanation of the new format. And keep an eye out for next month’s “First Monday Edition” with reading recommendations, analysis, reforms watch, jobs, events, and much more.

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Renee Knake Jefferson holds the endowed Doherty Chair in Legal Ethics and is a Professor of Law at the University of Houston. Check out more of her writing at the Legal Ethics Roundup. Find her on X (formerly Twitter) at @reneeknake or Bluesky at legalethics.bsky.social. 

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