Accountability at the High Court
By Jeremy Conrad
Similar to physicians , actuaries , and a small roster of other professionals , attorneys and most judges are subject to self-regulation , constrained in their actions by ethical codes that clearly establish what conduct is impermissible . Public confidence in the legal profession rests largely on the existence of and adherence to these rules .
Attorneys are regulated by their jurisdiction ’ s rules of professional conduct , while state and federal judges are held to codes of judicial conduct . The United States Supreme Court justices , on the other hand , aren ’ t regulated at all .
The Lawyers Defending American Democracy ( LDAD ), working in partnership with the Project on Government Oversight ( POGO ), proposes to address this absence . Together they published a proposed Model Code of Conduct for U . S . Supreme Court Justices in March . They say that its adoption is necessary to restore confidence in a critical institution whose reputation has suffered significant setbacks .
Lauren Stiller Rikleen , executive director of LDAD , says the proposed code of conduct differs from the existing Code of Conduct for United States Judges in a number of significant ways . Rather than lobby for the application of the Code of Conduct for United States Judges to the nation ’ s highest court , Rikleen says LDAD decided to produce a modern code , specially tailored to contemporary judicial ethics concerns .
“ The world has changed dramatically , even in just the past few years . For example , the ways that dark money is spent have accelerated , including the ways in which funds are funneled to different organizations , many of which have roles before the Court , whether as parties or in amicus briefs ,” Rikleen says . “ What we wanted to do was look at the big picture , recognizing that a simple application of the federal judicial code to SCOTUS would not be sufficient .
“ Accordingly , in creating a code for the Supreme Court , we wanted to make sure it was addressing all of today ’ s problems the best we can ,” Rikleen adds .
The proposed code for justices employs the federal judicial code as a starting point , but it introduces more stringent rules relating to recusal and requires broader disclosures of family financial entanglement with parties . Recusal decisions would involve enhanced disclosure requirements to provide greater consistency and predictability .
The Supreme Court ’ s unique docket drives some of the distinctions in the proposed code . Federal judges are required to divest from assets if a likelihood of frequent recusal might result — circumstances more likely to occur when a federal judge ’ s jurisdiction is more geographically limited . Given the breadth of practice in the Supreme Court , it would be difficult to class investments as likely or unlikely to result in recusal , Rikleen says .
The proposal calls for investments by Supreme Court justices to be placed in a blind trust and imposes more stringent disclosures of income and gifts . The proposal also seeks increased clarity and limitations regarding the participation of justices in activities involving “ organizations with partisan or ideological agendas .”
Rikleen notes that LDAD and POGO did not propose a specific enforcement mechanism because their immediate goal was to start an important conversation about what a Supreme Court code of conduct should include . More work is required in the future to address how complaints would be initiated , investigated , and enforced , she says . our profession but [ also ] for our society .” In addition to further entrenching disparities in representation , the unregulated use of technology could facilitate the actions of frivolous filers , or be abused to produce false or manipulated evidence , adds Lynk .
Recalling the introduction of desktop computers and email , Lynk says that both the profession and individual attorneys can benefit from actively engaging with emerging tech . “ Every change in technology has created opportunities ,” he says . “ There has been a learning curve , but also an expansive curve in how technology can increase the number of clients we can serve . Our profession has got to be willing to embrace that . We ’ ve got to start thinking prospectively and creatively now because technology won ’ t wait . Yet in most states , and in the federal system , we ’ re not rushing at all .”
Issues with Remote Work
Thanks to technology , the legal profession has been able to conduct work remotely , a change accelerated by the pandemic . Attorneys can increasingly consult , research , draft filings , or even appear in court without leaving their home . However , this flexibility has introduced some thorny issues relating to Unathorized Practice of Law ( UPL ).
In April 2022 , the Association of Professional Responsibility Lawyers ( APRL ) submitted a proposal to the ABA to replace Model Rule 5.5 , which concerns UPL and the multijurisdictional practice of law , with one that they say accommodates contemporary ways of working . The ABA and a growing number of states are undertaking a study of whether UPL rules could better reflect modern practice , continue to ensure client protection , and help meet the needs of underserved areas .
In most jurisdictions , the pandemic resulted in at least a temporary suspension of some restrictions on multijurisdictional practice . Acknowledging that many house-bound attorneys were located in a different jurisdiction than where their office or practice is centered , the ABA in December 2020 issued Formal Opinion 495 , which permitted attorneys to work outside of their jurisdiction of licensure , provided they did so “ invisibly .”
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