Michael Ariens, Anti-Discrimination Ethics Rules and the Legal Profession, 50 Hofstra L. Rev. 501 (2022)
One of COSAC's policy justifications for amending New York's anti-discrimination rule rings as true as ever: “[T]he legal profession should aspire to be more diverse, more equitable, and more inclusive of its own members.”151 Inclusion, of course, works in a variety of ways. One such way is to acknowledge that stark differences among lawyers have and will always exist.
Michael Ariens, Model Rule 8.4(g) and the Profession's Core Values Problem, 11 St. Mary's J. Legal Mal. & Ethics 180 (2021)
Model Rule 8.4(g) declares it misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The American Bar Association (ABA) adopted the rule in 2016 in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.
A substantial number of lawyers opposed the ABA's adoption of Rule 8.4(g), most often on free speech and religious liberty grounds. Since its adoption by the ABA, lawyers have argued for and against state adoption of Rule 8.4(g), in part based on competing understandings of the “core values” at stake in this debate.
References to the core values of the American legal profession emerged relatively recently. They are also often mentioned absent any particular definition. Not surprisingly, lawyers disagree about whether some normative declaration expresses a core value for American lawyers. They also disagree whether there exists a hierarchical ranking of core values, and if so, how to organize core values in tension with one another. In part, this represents a long-existing debate among lawyers about how to fulfill one's duties to client, court, third parties, and community. It also reflects a split among American lawyers. The American legal profession has been fractured along a number of axes for a long time. Private practice lawyers specialize in vastly different fields of law; *181 they work alone, in Big Law, in government, in corporations, and in legal aid/public interest entities; they represent disparate types of clients, such as individuals and organizations, and within those hemispheres, they represent persons and organization with diverse legal needs and interests; they work in small towns and large cities; they earn millions and support themselves by taking second jobs; and they differ in their views regarding the usual subjects, politics, culture, and religion. Such a disaggregated group will struggle to form a consensus, much less an overwhelming majority, about what values lie at the core of a definition of “lawyer,” “legal profession,” the “practice of law,” or “the lawyer's duties.” The Rule 8.4(g) debate may offer some insight into why the parties seem to speak past one another, and whether any core values are embraced across the divisions within the legal profession. Relatedly, the ABA's shrinking membership reflects the difficulty of speaking of a (singular) legal profession, and the decline in the ABA's influence indicates it is less likely to be able to generate a broader acceptance of specific core values as reflected in rules such as 8.4(g).
Michael Ariens, The Appearance of Appearances, 70 U. Kan. L. Rev. 633 (2022)
The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic. During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was deemed partial, and thus ineligible to act. One such instance was actual bias: a judge was to avoid favoring one party or disfavoring another. Close behind the duty to avoid actual bias was the duty of judges to avoid creating a suspicion of unfairness or bias. Public suspicion that a judge was biased, even if untrue, lowered public confidence in judicial integrity and thus, judicial independence. The American Bar Association adopted that understanding in its 1924 Canons of Judicial Ethics. Canon 4 challenged judges to avoid both “impropriety and the appearance of impropriety.” The difficulty of applying an appearance of impropriety standard was found in the very making of the Canons. One proposed canon was modified before ABA approval even though it was an excellent example of why judges should avoid an appearance of impropriety. The Canons were premised on the ideal that a judge was to act honorably; avoiding improper appearances maintained the judge's honor. The Canons served as guidelines for judges, as standards subjectively interpreted by them and applied to their personal and *634 professional lives. They were not intended to serve as rules to sanction or discipline judges for actual or perceived misconduct. For the next half-century, the Canons largely served this limited purpose. In 1972, the ABA adopted a Code of Judicial Conduct, supplanting the Canons. Most states adopted the Code as law. The duty to avoid creating an appearance of impropriety was part of the 1972 Code, and its importance rose. Both supervising courts and newly-created judicial conduct commissions often assessed charges of judicial misconduct through the lens of the appearance standard. The ABA's 1990 Model Code altered its 1972 iteration by emphasizing the positivist aspect of the Code: any Canon or Section (rule) written in terms of “shall” was mandatory. The duty to avoid an appearance of impropriety was found in Canon 2 of the 1990 Model Code. Judges were regularly disciplined for violating Canon 2. In the ABA's 2007 reformation of the Model Code of Judicial Conduct, commenters debated the efficacy of “appearance of impropriety.” The ABA joint commission reforming the Code went back and forth before deciding to split the baby: Canon 1 declared as an aspirational goal the avoidance of an appearance of impropriety, but no judge was subject to discipline for failing to do so. This approach was strongly opposed, and the ABA hastily reversed course. It amended Rule 1.2 to declare that a judge “shall avoid ... the appearance of impropriety.” Nearly all states have adopted some appearance of impropriety standard. For a half-century, failing to avoid the appearance of impropriety has been central to disqualifying and disciplining judges. This paper investigates the origins of the “appearance of impropriety” standard, its modest development, and its vigorous use since the rise of modern judicial ethics.
Michael Ariens, The Fall of an American Lawyer, 46 J. Legal Prof. 195 (2022)
John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers's property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall's disbarment.
Randall had acted grievously in serving as Lovell Myers's attorney. He was also a convenient scapegoat for a profession reeling from the Watergate affair and other crises negatively affecting the reputation of lawyers among the public. Not only had Randall served as ABA President, he was the coauthor of a well-known Statement on Professional Responsibility that emphasized the lawyer's duty to serve clients and society before oneself. Randall had chosen otherwise, and authorities planned to “hold him to account.”2 The thesis of this essay is that Iowa disciplinary authorities, both its Grievance Commission and the Iowa Supreme Court, strayed from their duty to impartially administer the law as applied to lawyer discipline. They apparently did so in part due to Randall's egregious behavior in defending himself from his own actions related to Lovell Myers. They also did so in part because Randall served more as a symbol than a tragedy.
A detailed study of the fall from grace of a 79-year-old lawyer from Cedar Rapids, Iowa in the late 1970s may serve as a cautionary tale. More broadly, Randall's case offers some insight into the evolution of American legal ethics in the mid-20th century. Finally, Randall's case may reflect the challenges of applying the rule of law to one whose behavior was marked by efforts to ignore the rule of law.
Noel Augustyn, Tribute, 10 St. Mary's J. Legal Mal. & Ethics XIII (2019)
The death earlier this year of Professor Tom Shaffer of the University of Notre Dame, professor of legal ethics, has provoked many memories among many people who were fortunate enough to have known him. As one of his students--in the broad sense that term--I was privileged to be asked to share some of my own, and they begin, literally, on the day that I and others in my class first met him.
Robert F. Cochran, Jr., Tribute, 10 St. Mary's J. Legal Mal. & Ethics XVIII (2019)
Thomas L. Shaffer , professor of legal ethics, was my teacher, mentor, co-author, and friend for forty-three years. Tom set me on the path of exploring the relationships between religion, law, virtue, and law practice, and I have been on it ever since. Most of what I know about those subjects, I learned through his guidance. I started this as a tribute to Tom, but almost every section included a memory of his wife Nancy's care and guidance, as well as that of Tom. I decided to make this a tribute to her as well. As you will see, they seemed to share every aspect of one another's lives.
John S. Ehrett, Virtue and the Administrative State, 37 ND J.L. Ethics & Pub Pol'y 43 (2023)
Debates over the lawfulness and importance of the administrative state frequently stall out because participants operate from incommensurable premises. Its critics appeal to history and tradition, and its defenders to the need for a unified national response to contemporary crises. By contrast, this article offers a novel critique of the administrative state through the lens of the virtue-ethics tradition that sidesteps this impasse. The article argues that any account of the administrative state must take into account the core bureaucratic virtues - public-spiritedness and subject-matter competence - that individuals within the administrative state must exemplify in order to succeed in their roles, and yet, that stand in tension with the institutional design of the administrative state. Finally, it develops a critical - but not nihilistic - paradigm for future judicial engagement with the administrative state, on the model of recent Supreme Court decisions in this area.
Luis Ricardo Fraga, PhD, Hearing on "The Need to Enhance the Voting Rights Act: Practice-Based Coverage" July 27, 2021 Vote Dilution and Voter Disenfranchisement in United States History, 36 Notre Dame J.L. Ethics & Pub. Pol'y 659 (2022)
In this essay I argue that one cannot understand current efforts at voter suppression, including both vote dilution and voter disenfranchisement, without placing these efforts within the long history of voter suppression in the United States. Although the targets of this suppression have varied and include largely European immigrants, African Americans, Latinos, Asian Americans, Native Americans and other language minorities, there are several commonalities in the voter suppression that occurred. First, the attempts at suppression were always group-based. These targeted groups of would-be and actual citizens were defined by group characteristics, and in that way were designed to minimize the political influence of groups of voters. Second, the attempts most often followed policies and practices that had led to the empowerment of these groups. It is important to understand that the empowerment of groups to access the franchise and exercise political power led to resentment from oppositional groups who now had to share power with previously disenfranchised groups. It was this underlying resentment that led to the efforts at voter suppression that would soon follow that empowerment. Stated differently, with few exceptions, newfound empowerment for previously marginalized groups rarely led to permanent empowerment. Third, there *660 are strikingly similar mechanisms that were used to suppress the votes of targeted groups. Policies and practices that led to vote dilution, such as gerrymandering, the use of at-large elections, and the changing of formerly elected positions to appointed positions were effectively used in most instances. The resulting loss of meaningful voter participation and reduction in the election of candidates of first choice most often then led to policies and practices of disenfranchisement including limiting voter registration, effective literacy tests, and the selective application of these efforts. Fourth, these policies and practices of voter suppression in the U.S. occurred in both the North and the South. In fact, it appears that there was likely a process of political learning from one region to another. Fifth, the role of the federal government, and especially the Supreme Court, in validating these policies and practices of voter suppression is clear, despite the 15th Amendment and the Voting Rights Act. Without Supreme Court approval, and most recently instigation by the Court, these suppression efforts would not have had the broad impact that we see throughout history, and that we continue to see today.
Stefanus Hendrianto, S.J., The Last Testament of Justice Scalia: On Aquinas and the Law, 34 Notre Dame J.L. Ethics & Pub. Pol'y 197 (2020)
On January 7, 2016, Justice Antonin Scalia delivered his last public lecture, titled Saint Thomas Aquinas and Law. Analysts have criticized Scalia for having an anachronistic reading of Aquinas. But those analysts had missed seeing that Scalia was searching for a deeper meaning instead of chastising Aquinas's theory of law. This Article investigates whether Aquinas's theological insights and Scalia's jurisprudence show similar traits. This Article argues that although Scalia's jurisprudence is not identical with Aquinas's theology, their positions are much closer than people would immediately imagine. They shared similar views on the limits of judicial authority and the need to find a balance between the private goods and the common good. This Article postulates that in his last lecture, Scalia was expressing his fear of subjectivity in the process of judging, in which Aquinas theory of interpretation might justify the volitional status of legal interpretation. Nevertheless, Aquinas believed that a virtuous judge must not seek honor and glory, but rather to direct people toward the common good. Thus, both Aquinas and Scalia shared a similar view that a reasonable judge must avoid sentimentality and personal values in judging.
Andrew K. Jennings, Conscience Leave, 35 Notre Dame J.L. Ethics & Pub. Pol'y 649 (2021)
In the federal government, political officials come and go while civil servants remain. In the ordinary course, the political officials make decisions about what policies the government will pursue while civil servants use their labor and expertise to carry those policies out--even when they disagree with them. But what happens when political officials pursue policies that civil servants view as deviating from normal bounds--policies that are unethical, immoral, or unlawful? This Article examines when and how civil servants might object to such policies, including going so far as to leave government service. It concludes that when faced with such situations, employees' personal benefit-cost analyses will generally lead them to not object to deviating policies.
Vincent R. Johnson, Lawyers, Mistakes, and Moral Growth, the Man in the Ditch: A Redemption Story for Today by Mike H. Bassett, the Man in the Ditch, LLC; Www.themanintheditch.com, Dallas, Texas, 122 Pages, (2021) Hardcover Isbn 1737235102, 12 St. Mary's J. Legal Mal. & Ethics 180 (2021)
Bassett's book, The Man in the Ditch, is a valuable addition to the literature that explores the professional responsibilities of lawyers. It is part of a great tradition which has long recognized that acting ethically as a lawyer presents moral challenges, and that sometimes there are no simple answers. Resolving such dilemmas often requires weighty deliberation and clear, mature judgment. Even then, the process can be arduous and uncertain. The consolation is that this type of ethical decision-making, and the pain it may entail, provides an opportunity for moral growth.35 Bassett's book will be a comfort and an inspiration to lawyers who have fallen into The Ditch.
Vincent R. Johnson, Tribute, 10 St. Mary's J. Legal Mal. & Ethics XXVIII (2019)
As a law professor and scholar, Thomas L. Shaffer (April 4, 1934 to February 26, 2019)1 was one of the giants2 in the field of legal ethics as it emerged in the last quarter of the twentieth century. Along with other great law teachers who have recently passed--including Monroe Freedman,3 Geoffrey Hazard,4 and Ronald Rotunda5--Shaffer molded the ideas about attorney professional responsibility that were shaped anew6 in the wake of *xxx Justice Tom C. Clark's American Bar Association report on the “scandalous” deficiencies in lawyer discipline7 (1970) and the Watergate Crisis8 that tarred President Richard M. Nixon9 and other prominent lawyers with the stigma of criminal and ethical misdeeds (1972-1974).10
Throughout his career, Shaffer taught law mainly at the University of Notre Dame and Washington and Lee University.11 He also served as a visiting professor at several other law schools, including UCLA, the University of Virginia, the University of Maine, and Boston College.12 Shaffer never taught at St. Mary's University, but he did have ties to both the law school and the university.
Fr. John Paul Kimes, Scandal and Due Process: A Canonical Response to the Mccarrick Case, 36 Notre Dame J.L. Ethics & Pub. Pol'y 237 (2022)
On June 20, 2018, the Catholic Church was rocked by the highest profile scandal in modern history. While Theodore McCarrick was no longer a sitting archbishop, his position as a cardinal and the perception that he was a close advisor to Pope Francis made the twin press releases from the Archdioceses of New York and Washington, D.C. top news across the world. There is little doubt of then-Cardinal McCarrick's influence in the American Church; there is equally little doubt that the accusations against McCarrick set off a global media firestorm and that his prosecution directly led to new legislative efforts by Pope Francis to close a perceived gap in the Church's continued prosecution of clerics' sexual offenses. This Article will recreate McCarrick's prosecution using only the information found in three press releases. This reconstruction will demonstrate some of the fundamental differences between civil and canon law, both procedurally and substantively, as well as highlight the Church's efficacious legislative efforts of the last twenty years to prosecute clerics' sexual crimes and canon law's ability to respond in moments of crisis.
Veryl Victoria Miles, Looking Beyond the Profit and into the Light: Consumer Financial Protection and the Common Good, 35 Notre Dame J.L. Ethics & Pub. Pol'y 93 (2021)
The intention of this Article is to review the various statements of Catholic Social Teaching that are fundamental in describing economic justice and that are most pertinent to any consideration of consumer financial protection as essential to the common good. This review will begin with Pope Leo XIII's *95 1891 encyclical Rerum Novarum4 and other encyclicals that followed Rerum Novarum as a continuum of Church teaching regarding social and economic justice; the pastoral letter from the United States Conference of Catholic Bishops entitled Economic Justice for All (1986);5 and the Pontifical Council of Justice and Peace's handbook on the Vocation of the Business Leader (March 2012).6 The next Part of this Article will include a description of the original goals and mission of the Act and the CFPB, and an assessment of how the intended goals and objectives of the Act and the structure and activities of the CFPB reflect the values and goals of social and economic justice from the perspective of Catholic Social Teaching. That is, to what extent do these legislative and regulatory initiatives bring us closer to providing for and ensuring that consumer financial products and services are accessible, fair, and helpful in meeting the needs of all potential users and the interests and rights of providers in the spirit of economic justice informed by Catholic Social Teaching?
Russell G. Pearce, Tribute, 10 St. Mary's J. Legal Mal. & Ethics LIV (2019)
In Jewish tradition, the honorific Zecher Tzadik Livracha--May the Memory of the Righteous be a Blessing--is reserved for great religious teachers who have embodied holiness in their lives. I greatly appreciate this invitation to write a memorial for Tom Shaffer, a devout Catholic. Tom had a tremendous influence on me. He provided an alternative model for being a law professor, opened my eyes to the importance of integrating Judaism into my work, and taught me the importance of redressing the corrosive influence of radical individualism on legal culture.
Michele R. Pistone, Expanding Immigrant Justice by Training Professionals, Judges' J., Winter 2022, at 15
This article begins by explaining the extent of the access to justice problem in immigration and the inability of lawyers to meet the demand for low-cost or pro bono legal representation. The next section suggests a solution to the problem through Department of Justice accredited representatives. That section describes the long-standing regulations authorizing “accredited representatives” to provide legal services to immigrants with applications before the U.S. Citizenship and Immigration Services (Immigration Services) and in removal proceedings before immigration court. The final section puts forth a plan for increasing the pool of accredited representatives through an educational program and surrounding support within the legal services ecosystem
Kyle Smith,The Dogma Lives Loudly Within Them: Revisiting the Role of the No Religious Test Clause in Senate Confirmation Hearings , 33 Notre Dame J.L. Ethics & Pub. Pol'y 313 (2019)
The broad wording of the religious test ban in Article VI engraved a policy of religious nondiscrimination on the foundation of the Republic. During an era of intense religious sectarianism, the rule shaped a culture of cooperation and inclusiveness indispensable to the preservation of the Union. The bold step taken to ban religious tests for offices in the United States radically cut against the prevailing norms and forged a new norm to serve as a North Star for future generations. As so many confirmation hearings continue to show, we find ourselves again at a point where sectarianism is deeper than ever. Sectarianism has inspired discrimination and religious tests which, due to their regularity and predictability, contravene the letter, spirit and implications of Article VI. The Constitution's structure makes the issue virtually inaccessible to judicial review or any check or balance. Constitutional norms in effect today demonstrate that this lack of cross-government accountability is no barrier to the restoration of religious nondiscrimination in the Senate, but it is imperative that supporters of nondiscrimination ensure that this norm is sufficiently established before it becomes overshadowed by the emerging desires to narrow protections into irrelevance.
