The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for February, 2015

In Memoriam: The Passing of Monroe Freedman and the Dimming of Legal Ethics

Posted by kswisher on Thursday, February, 26, 2015

With nothing but sadness, I must report that Professor, Dean Emeritus, and now Judicial Ethics Forum Emeritus Monroe Freedman passed away today.  In addition to the inherent sadness, anything reported about Monroe — a founder of modern legal ethics — will be an understatement.  Fortunately, of the many tributes to Monroe over his storied career, two particularly fitting and detailed tributes have already been published: see Ralph Temple’s 1988 piece here; and a Hofstra Law Review Symposium dedicated to Monroe’s work here (including works from Alan Dershowitz, Steve Gillers, Tom Morgan, Deborah Rhode, Roy Simon, among others).   Monroe was an advocate and scholar of firsts, as Hofstra Law School reports (citations omitted):

Freedman was the first legal scholar to argue that the Bar’s restrictions on lawyer advertising violate the First Amendment and to point out that the anti-advertising rules blocked information about lawyers’ services from less educated and less sophisticated people who most need the information.  He was also the first to attack restrictions on trial publicity by defendants and defense attorneys, to argue that lawyers should be permitted to reveal information necessary to prevent death or serious bodily harm, to argue that law professors’ sexual relations with students should be recognized as unethical conduct; to argue that the lawyer’s decision to represent a client is a moral decision and subject to the moral scrutiny of others, and to analyze the ethics of coaching witnesses and to discuss the relevance of scholarship in behavioral psychology.

Moreover, many readers will have used Monroe’s canonical scholarly works, which included Lawyers’ Ethics in an Adversary System (1975) and Understanding Lawyers’ Ethics (4th ed. 2010) (with Prof. Abbe Smith).  Monroe taught me (and countless other lawyers, professors, and judges) an irreplaceable amount about confidentiality norms, legal advertising, and the due process implications of judicial elections and judicial recusal.  (A personal favorite of mine from Monroe’s judicial ethics scholarship is Judicial Impartiality in the Supreme Court — The Troubling Case of Justice Stephen Breyer.)  Monroe was so well-known in the field — and for so many notable accomplishments — that listing only a few items admittedly paints a misleadingly understated picture, but to mislead out of the terrible necessity of the occasion:

  • Monroe became the fifth recipient of the ABA Michael Franck Award, which is the ABA’s highest honor in ethics and professionalism, following Michael Franck himself, Father Drinan, Mark Harrison, and Lewis Van Dusen;
  • Monroe’s advocacy and scholarship received, in addition to the customary scholarly and popular praise, a call for investigation and disbarment by (among others) Chief Justice Warren Burger of the Supreme Court of the United States;
  • Monroe advocated, championed, guided, enlightened, and otherwise supported thousands of causes, particularly in capital defense and other criminal law matters (indeed, Alan Dershowitz called on Monroe as Alan’s legal ethics expert in criminal cases); and
  • Monroe famously articulated the perjury “trilemma” of the criminal defense lawyer: the lawyer is impossibly required “to know everything, to keep it in confidence, and to reveal it to the court.”

As legal ethicists attempt to move forward in Monroe’s absence, a new trilemma will present itself over and over: to acquire Monroe’s integrity and spirit of public service . . . without Monroe.

UPDATE: Professor Susan Saab Fortney, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Monroe’s Hofstra Law School, just kindly shared this news and link:

Thanks to everyone for their reflections and words of condolence related to the passing of Monroe.  From the day I arrived at Hofstra, Monroe was a supportive friend and mentor.

Before Monroe’s death, the Professional Responsibility Section of AALS had approved of the following program for the January 2016 annual meeting: “Ethics in Criminal Practice — The Three Hardest Questions Today:  A Conversation in Honor of Monroe Freedman.”  Monroe was very pleased to know about the program.  Bruce Green and I are organizing the program and trying to make it a  double session. We are now deeply saddened that this will be now be a memorial tribute, but honored to continue the discourse that Monroe started fifty years ago with his seminal work.

Advertisements

Posted in Judicial Ethics Generally | Leave a Comment »

More Roy Moore and the Ethics of Refusing Same-Sex Marriages

Posted by kswisher on Thursday, February, 26, 2015

Unbelievably, Alabama Chief Justice Roy Moore is still in the news — “unbelievably” because this is the same Chief Justice Moore whose colleagues had to remove from the Alabama Supreme Court for his failure to comply with a direct federal court order to remove his Ten Commandments monument from the public courthouse.  As his colleague-justices later concluded, Moore’s actions back in 2001 to 2003 clearly violated the Code of Judicial Conduct, which requires (among other relevant conduct) that judges comply with the law.  Moore was nevertheless reelected and has since instructed probate judges not to issue marriage licenses for same-sex marriages.  At least two interesting and relevant pieces related to this development follow:

First, Professor Amanda Frost recently published a piece on whether state courts must or should follow lower federal court precedent on the meaning of federal law.  Although her work was written just before this recent controversy, it provides intriguing historical and other perspectives on this question.  See Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?, 68 Vand. L. Rev. 53 (2015).

Second, the Arizona Judicial Ethics Advisory Committee just issued Opinion 15-01, which concludes that judges cannot ethically refuse to marry same-sex couples out of religious or other objections.  Although judges may refuse to marry all couples or may marry only close family and friends, judges may not refuse to marry same-sex couples and thereby discriminate against them.  See Model Code R. 2.3(B).  (In a sense, the decision loosely parallels employment law to some extent in that an employer can generally hire or fire an employee for “no reason” but not for a “bad reason.”)

UPDATE: The Arizona Judicial Ethics Advisory Committee revised its opinion last month.  The new opinion reaches the same conclusions as above but (1) emphasizes that judges are not required to perform marriages at all (but if they do, they must not discriminate between same- and opposite-sex couples) and (2) deletes the reference to Rule 1.1 (which requires judges to comply with the law).  The revised opinion is available here.

Posted in Canon 2, Judicial Ethics Generally | Leave a Comment »

Roundtable: Williams-Yulee v. The Florida Bar

Posted by kswisher on Thursday, February, 26, 2015

Vanderbilt Law Review’s online forum (called En Banc) just published a fascinating list of short essays on the Supreme Court’s upcoming Williams-Yulee opinion (which will address to what extent the First Amendment shields elective judges who solicit campaign contributions personally):

The Absent Amicus: “With Friends Like These . . .”
PDF · Robert M. O’Neil · 68 Vand. L. Rev. En Banc 1 (2015).

Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar
PDF · Ruthann Robson · 68 Vand. L. Rev. En Banc 15 (2015).

Much Ado About Nothing: The Irrelevance of Williams-Yulee v. The Florida Bar on the Conduct of Judicial Elections
PDF · Chris W. Bonneau & Shane M. Redman · 68 Vand. L. Rev. En Banc 31 (2015).

Williams-Yulee and the Inherent Value of Incremental Gains in Judicial Impartiality
PDF · David W. Earley & Matthew J. Menendez · 68 Vand. L. Rev. En Banc 43 (2015).

Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar
PDF · Stephen J. Ware · 68 Vand. L. Rev. En Banc 59 (2015).

The Jekyll and Hyde of First Amendment Limits on the Regulation of Judicial Campaign Speech
PDF · Charles Gardner Geyh · 68 Vand. L. Rev. En Banc 83 (2015).

What Do Judges Do All Day? In Defense of Florida’s Flat Ban on the Personal Solicitation of Campaign Contributions From Attorneys by Candidates for Judicial Office
PDF · Burt Neuborne · 68 Vand. L. Rev. En Banc 99 (2015).

Williams-Yulee v. The Florida Bar, the First Amendment, and the Continuing Campaign to Delegitimize Judicial Elections
PDF · Michael E. DeBow & Brannon P. Denning · 68 Vand. L. Rev. En Banc 113 (2015).

To highlight one particularly interesting essay of the lot, Prof. Ruthann Robson tells her story of being solicited (albeit indirectly) for a contribution, opines on the detrimental impact that Williams-Yulee could have on the interests of clients and lawyers, and discusses four cases, some expected (e.g., White and Caperton) and some unexpected (e.g., Shelley v. Kraemer), that should inform the result in Williams-Yulee.  Her work is available here.

Posted in Judicial Campaigns, Judicial Ethics Generally | Leave a Comment »