Quick Hits from Elsewhere
I’m working on some longer pieces and on my actual job, so for now, a few quick hits:
Federal courts: Something troubling, which I would like to address in a longer form when I have some time, is this judicial disciplinary order against Senior Judge Michael A. Ponsor of the U.S. District Court for the District of Massachusetts. Back in May, he wrote an opinion piece (paywalled) in the New York Times that criticized the flying of upside-down American flags and an Appeal to Heaven flag outside of homes belonging to Supreme Court Justice Samuel Alito. A complainant (who was not identified) complained that the essay went too far, and may have been viewed by the public as an extrajudicial request for recusal on January 6 cases and/or partisan commentary.
The matter was resolved through what is essentially an apology from Judge Ponsor. Again, I’ll write more when I can, but we have a problem when it is considered judicial misconduct for a judge to point out some very public, and very problematic, conduct of a Justice (to whom no binding code of conduct applies). The complaint and disciplinary system does get used against judges and state Justices as a political weapon—here’s a law review article from 2005 I stumbled upon recently, and a Slate commentary from Wisconsin Supreme Court Justice Jill Karofsky concerning her experience following the 2020 election—but this seems particularly galling.
I note that SCR 20:8.2 and the corresponding Model Rule prohibit lawyers from making statements they know to be false, or with reckless disregard for their truth, about the qualifications of a judge. judicial officer, or candidate. The rules do not prohibit all criticism (so when someone files a politically motivated grievance against me for this post, I can point to this rule and say, no, the rules do not prohibit me from criticizing judicial disciplinary decisions, or providing commentary about the fact that Justice Alito had some questionable flags flying outside of his house.)
Yes, the Supreme Court/Model Rules apply to lawyers, not judges; judicial codes tend to be broader, but also more vague. Federal judges may write and speak about the law and the legal system (see the code for Federal judges, Canon 4), but there are other rules prohibiting making comments on a matter pending or impending in any court, and avoiding controversy and even the appearance of impropriety. Right now, that seems to encompass whatever the Powers that Be say it does.Federal Courts Part 2: Meanwhile, Justice Ketanji Brown Jackson had a walk-on role in a Broadway musical production of & Juliet. A “walk-on role” is a small part, with minimal or no speaking. Such a role is perfect for the winner of a charity auction, a local celebrity, a theater student, or really anyone the theater company wants to invite. It’s inconsequential, and fun, and yet some people are going to criticize even that when a Justice the disagree with does it. My modest proposal: Let Judges and Justices enjoy things like regular people.
Illinois: CWBChicago is reporting that former Cook County State’s Attorney Kim Foxx, is no longer eligible to practice law in Illinois for failing to show compliance with continuing legal education requirements. This would not be newsworthy by itself—if she’s out of office and not practicing law, it’s an administrative matter, not a disciplinary one (and easily remedied if she’d like to return to practice), but the article explained that her name would have been removed from the attorney’s rolls on December 1, and she did not leave office until December 2, and pleadings may have been filed under her name when she was not eligible to practice. We’ll see how this shakes out.
As a reminder, Wisconsin lawyers who were admitted in even-numbered years, your CLE needs to be completed by January 31, and reported by February 1, 2025, to avoid late fees, and, after a few months, possible suspension.
APRL: The Association of Professional Responsibility Lawyers has proposed a change to American Bar Association Model Rule 5.4, which would allow lawyers to share fees with non-lawyers, and would permit creative ownership of law firms. My nerd friend Brian Faughnan (who sits on the APRL committee that prepared this proposal and report) has a good rundown. I am supportive of this proposal—jurisdictions that have loosened their versions of 5.4 have not seen the sky fall—and have brought it to the attention of a few of my colleagues on the Wisconsin State Bar ethics committee, as APRL is encouraging individual jurisdictions to act regardless of what the ABA decides to do.
