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Legal Ethics & Malpractice Reporter

Table of Contents

Featured Topic

Defending a Judicial Misconduct Case

New Authority

Kansas Law Review Symposium 2021: Judicial Conduct and Misconduct: A Review of Judicial Behavior from Sexting to Discrimination

Ethics and Malpractice Research Tip

New Articles Drawn from the Current Index of Legal Periodicals

A Blast from the Past

An Excerpt from the Kansas Law Journal, May 1885

EDITED BY: Professor Mike Hoeflich

PUBLISHED BY: Joseph, Hollander & Craft LLC

Featured Topic

Defending a Judicial Misconduct Case

Just as attorneys tend to focus on upholding their substantive duties under the Code of Professional Responsibility over the procedure that ensues should they be accused of falling short, judges tend to focus on the substance of the Code of Judicial Conduct rather than what proceedings will follow an allegation of misconduct. This prioritization is certainly reasonable. But it leaves many on their heels when faced with a complaint.

Those who attended the 2021 Kansas Law Review Symposium on “Judicial Conduct and Misconduct: A Review of Judicial Behavior from Sexting to Discrimination” are ahead of the game after receiving a crash course in the practical realities of judicial conduct proceedings. Among the symposium’s speakers was Christopher Joseph, who has defended numerous judges before the Kansas Commission on Judicial Conduct and before the Kansas Supreme Court. In his presentation, Chris walked the audience through the various steps in the judicial disciplinary process and provided important commentary for any judge who is the subject of a misconduct complaint. The substance of his remarks is presented below.

New Authority

Kansas Law Review Symposium 2021: Judicial Conduct and Misconduct: A Review of Judicial Behavior from Sexting to Discrimination

As discussed in last month’s Legal Ethics & Malpractice Reporter, on November 15, 2021, the Kansas Law Review sponsored a half-day virtual symposium on “Judicial Conduct and Misconduct: A Review of Judicial Behavior from Sexting to Discrimination.” The presentations ranged from highly theoretical to very practical. The final lineup of presenters included:

  • Ross Davies – Professor, Antonin Scalia Law School, George Mason University
  • Michael Ariens – Professor, St. Mary’s University School of Law
  • Stephen Sheppard – Professor, St. Mary’s University School of Law
  • Susan Saab Fortney – Professor, Texas A&M University School of Law
  • Christopher Joseph – Attorney, Joseph, Hollander & Craft, LLC
  • Honorable Caleb Stegall – Justice, Kansas Supreme Court

Professor Ross Davies began the afternoon discussing how judicial misconduct of United States Supreme Court Justices has been handled to date. He reminded us all that there are a number of “coercive” and “non-coercive” ways to address the conduct of these justices appointed to lifetime terms of service. They range from impeachment, as in the case of Justice Chase, to offering a different and more “desirable” position, as illustrated by Justice Goldberg stepping down from the Supreme Court in order to become the U.S. Ambassador to the United Nations.

Professor Michael Ariens gave a delightful talk on the development of codes of judicial conduct in the United States and, in particular, the development of the concept of an “appearance of impropriety.” He reminded the audience of a key factor in the development of the “appearance of impropriety” standard: opposition to Judge Kennesaw Mountain Landis simultaneously serving as a federal district court judge and as the first Commissioner of Baseball (and being paid for doing both).

Professor Stephen Sheppard’s presentation looked at the history of the notion of “justice” and how the development of this idea has informed and transformed the judiciary and the expectations of how judges ought to act.

Professor Susan Saab Forte gave a fascinating talk on the need for judges to be “leaders” in their courts and proposed that judicial codes of conduct be amended to hold judges responsible for discriminatory acts or harassment by court personnel under their supervision. Noting the practical implications of the issue, she cited a number of cases demonstrating the adverse consequences of supervisory failures.

Chris Joseph spoke from the perspective of a lawyer who regularly defends judges in disciplinary proceedings. A summary of his remarks is the lead article in this month’s LEMR.

Judge Caleb Stegall’s keynote address was a brilliant exposition of the ethical obligations of a judge from the perspective of a sitting Supreme Court Justice. It was a thoughtful and nuanced discussion about the ethical contours of judicial decision making—an issue he identified as “the most pressing judicial ethics question that we face today.” It would be a disservice to Judge Stegall’s presentation to summarize it in a few sentences. Instead, interested readers should view Justice Stegall’s complete talk online. It is well worth the time.

The video of the entire symposium will be available online on the KU Law YouTube channel. The printed version of the symposium—with expanded versions of the presentations—will appear in the Spring 2022 issue of the Kansas Law Review.

Ethics & Malpractice Research Tip

New Periodical Literature Drawn from the Current Index of Legal Periodicals

Rebecca Aviel & Alan K. Chen, Lawyer Speech, Investigative Deception, and the First Amendment, 2021 U. Ill. L. Rev. 1267 (2021).

Aviel and Chen offer an important investigation of the limits of the First Amendment rights of lawyers.

Lori D. Johnson, Navigating Technology Competence in Transactional Practice, 65 Vill. L. Rev. 159 (2020).

These days, there are few more important issues for lawyers than ensuring that they are meeting the requirements of Rule 1.1 on competence, especially competence in the ever-changing developments in legal technology. This is an excellent article exploring one aspect of the competency rule.

Leah Wing et al., Designing Ethical Online Dispute Resolution Systems: The Rise of the Fourth Party, 37 Negot. J. 49 (2021).

From an issue of the Negotiation Journal dedicated to the theme of artificial intelligence, technology, and negotiation, here is another article on legal technology and the ethical traps that await the unwary and the uninformed.

Blast from the Past

An Excerpt From the Kansas Law Journal, May 1885

We take the following from the Daily Capital of this city:

“That cautious and prudent conservatism with which judges usually approach the consideration of grave questions is a valuable trait in judicial character. Upon it in very large measure depends the security of public liberty. Nothing is more commendable in the decorum of judicial officers than a spirit of deliberateness. There is more than dignity in it; for when it is coupled with learning, it commands [the] respect and confidence of the people. But conservatism does not mean a clinging to wrecks. Courts, like legislatures, must bend to the current of the world’s thought. They must accommodate themselves to the actual and permanent changes of affairs among men. Glaciers’ movements are measured by permanent objects on the hills. The world moves by epochs, and we trace its march by the new things wrought. Principles are germs always sending out new phases and developing new forms. Courts and the practice in them are built upon great truths. The fundamental principle of law is protection against wrong. As the world moves ahead men’s interests become more complex, and facilities for doing right and for doing wrong multiply, and courts will not, they must not, fail to recognize in the same old principles which have governed them since the last upheaval, new elements, new powers, new applications to accord with what men need now. Protection is always the same in principle, but methods of affording or of obtaining it must necessarily vary under varying circumstances; courts must recognize these grand marches of men; judges must grow with the time’s mentality. Like priests, they must come out of the cloisters and monasteries, and take up their abode among men.”

1 KANSAS LAW JOURNAL, 258 (1885)

Download a PDF version of the Legal Ethics & Malpractice Reporter, vol. 2, no. 11 via the button below.

About LEMR

The Legal Ethics & Malpractice Reporter (LEMR) is a monthly publication covering current developments in ethics and malpractice law. This popular, free publication, with close to 8,000 current subscribers, was envisioned by KU Law professor Mike Hoeflich, who serves as the publication’s editor in chief. In partnership with Professor Hoeflich, JHC’s legal ethics and malpractice group is pleased to publish this monthly online periodical to help attorneys better understand the evolving landscape of legal ethics, professional responsibility, and malpractice.

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About Joseph, Hollander & Craft LLC

Joseph, Hollander & Craft is a premier law firm representing criminal, civil and family law clients throughout Kansas and Missouri. When your business, your freedom, your property, or your career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 20+ attorneys has you covered. We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for victims of trucking collisions and those who have suffered traumatic brain injuries due to the negligence of others. We fight allegations of professional misconduct against doctors, nurses, judges, attorneys, accountants, real estate agents and others. And we represent healthcare professionals and hospitals in civil litigation.