Can You Be a Legal Ethics Scholar and Have Guts?

• Author: Cynthia Godsoe, Abbe Smith, and Ellen Yaroshefsky
• Position: Professor of Law, Brooklyn Law School/Scott A. Ginsburg Professor of Law, Director of the Criminal Defense & Prisoner Advocacy Clinic, Co-Director off the E. Barrett Prettyman Fellowship Program, Georgetown University Law Center/Howard Lichtenstein Distinguished Professor of Legal Ethics, Executive Director of the Monroe H. Freedman Institute...
• Pages: 429-461

Can You Be a Legal Ethics Scholar and Have Guts?

CYNTHIA GODSOE*, ABBE SMITH**, AND ELLEN YAROSHEFSKY***

ABSTRACT

Recent efforts to hold lawyers accountable for their actions—including

lawyers who sought to overturn the 2020 Presidential election based on false

evidence, and New York City prosecutors who have committed serious mis-

conduct—failed to draw a significant number of legal ethics scholars. The

authors of this Essay are troubled by this. We understand why practicing law-

yers might be reluctant to join such an effort; calling out other lawyers in

positions of power can be bad for clients. But it is less understandable when it

comes to law professors who, except for those who teach in law clinics or oth-

erwise engage in law practice, have no clients. Legal ethics scholars write

and teach—often from a secure academic position—about the importance of

legal ethics.

The authors have been involved in both efforts. In this Essay, we examine

why so many of our academic colleagues begged off, and why they are reluc-

tant to use their privileged perch to speak out generally. We then argue for

greater engagement in real world legal ethics, no matter how controversial.

This Essay proceeds as follows: Part I explains what we mean by having

“guts.” Part II acknowledges our debt to Monroe Freedman and Deborah

Rhode, two scholars who were fully engaged in legal ethics in the real

world. Part III discusses why filing disciplinary complaints under the Model

Rules of Professional Conduct is a sound approach to holding lawyers ac-

countable, even lawyers engaged in politics. Part IV recounts the prosecuto-

rial misconduct project to which it was difficult to recruit legal ethics

scholars. Part V identifies some factors we believe underlie our colleagues’

reluctance to become engaged in these sorts of efforts. Part VI suggests a

path forward.

* Professor of Law, Brooklyn Law School. Thanks to Danika Gallup and Eliza Reinhardt for excellent

research assistance, and to Adam Penenberg for an explanation of journalism ethics. © 2022, Cynthia Godsoe,

Abbe Smith & Ellen Yaroshefsky.

** Scott A. Ginsburg Professor of Law, Director of the Criminal Defense & Prisoner Advocacy Clinic, Co-

Director off the E. Barrett Prettyman Fellowship Program, Georgetown University Law Center. With thanks to

Rachel Bass and Elaina Rahrig for excellent research assistance.

*** Howard Lichtenstein Distinguished Professor of Legal Ethics, Executive Director of the Monroe H.

Freedman Institute for the Study of Legal Ethics, Hofstra University Maurice A. Deane School of Law.

429

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430

I. WHAT DO WE MEAN BY “GUTS”?. . . . . . . . . . . . . . . . . . . . . 433

II. OUR DEBT TO MONROE FREEDMAN AND DEBORAH RHODE . . 436

III. USE OF THE MODEL RULES OF PROFESSIONAL CONDUCT AND

DISCIPLINARY AGENCIES TO CURB UNETHICAL BEHAVIOR . . . 440

IV. ONE EXAMPLE OF A MAJOR ETHICAL PROBLEM THAT LEGAL

SCHOLARS WERE NOT EAGER TO ENGAGE WITH . . . . . . . . . . 443

V. WHY DO SO FEW LEGAL ETHICS SCHOLARS ACT WITH

GUTS?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448

A. CULTURE OF THE LEGAL ACADEMY . . . . . . . . . . . . . . . . 448

B. PERCEPTION OF APPROPRIATE ROLE . . . . . . . . . . . . . . . . 449

C. FALSE BINARIES AND THE MYTH OF NEUTRALITY IN

SCHOLARSHIP AND TEACHING. . . . . . . . . . . . . . . . . . . . . 452

VI. A PATH FORWARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460

INTRODUCTION

The Trump Presidency was a turbulent time, to put it mildly.

1

See Trump Presidency: A Flashback Through Four Turbulent Years, BBC NEWS (Jan. 18, 2021), https://

www.bbc.com/news/av/world-us-canada-55683896 [https://perma.cc/5MLZ-P65Q] (providing a collection of

news clips from the Trump Presidency); Stephen Collinson, Trump’s Turbulent and Lawless Presidency Will

End With Historic Second Impeachment, CNN POLITICS (Jan. 13, 2021), https://www.cnn.com/2021/01/13/

politics/donald-trump-impeachment-history-joe-biden/index.html [https://perma.cc/C63M-9EWK] (reporting

on Trump’s second impeachment, sparked by the January 6, 2021 insurrection at the Capitol, and noting that “it is an

extraordinary mark of turbulent times and a lawless term that Trump will become the first president to be impeached

twice—only 13 months after the House first resolved that his abuses of power merited removal from office”).

From Trump’s

angry, incendiary inaugural address in 2017

2

See generally Sam Stein & Daniel Lippman, How the First Day of the Trump Presidency Foreshadowed

the Four Years to Come: Behind the Scenes at the Last Inauguration—As Remembered by the Obama and

Trump Aides Who Were There, POLITICO (Jan. 19, 2021), https://www.politico.com/news/magazine/2021/01/

19/trump-2017-inauguration-presidency-460248 [https://perma.cc/BY6Q-ESPE] (recounting the events of

until he grudgingly left the White

1.

2.

430 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:429

House in 2021—in the aftermath of a mob attack on the Capitol, which he

incited

3

See generally Peter Nicholas, What I Saw at the White House on Trump’s Last Day, THE ATLANTIC (Jan. 20,

2021), https://www.theatlantic.com/politics/archive/2021/01/trump-leaves-white-house/617758/ [https://perma.cc/

6JL7-DV26] (describing Trump’s last day in office and noting that Trump is not “merely a sore loser,” but “was

even a sore winner, weaving conspiracy theories about how he was robbed of the popular vote in 2016”). As

presidential historian Michael Beschloss said:

This is the only president in American history who incited an insurrection against Congress that

could have resulted in assassinations and hostage-taking and, conceivably, the cancellation of a

free presidential election and the fracturing of a democracy. . . . That’s a fact, and it won’t change

in 50 years. It’s very hard to think of a scenario under which someone might imagine some won-

derful thing that Donald Trump did that will outshine that. He did, literally, the worst thing that an

American president could ever do.

Id.

—each day of his presidency somehow managed to be worse than the day

before.

Interestingly, Trump had fewer lawyers in his administration than any other

president in recent years.

4

Debra Cassens Weiss, Trump’s Cabinet Has Fewer Lawyers Than in Past Administrations, ABA J. (Mar.

3, 2017), https://www.abajournal.com/news/article/trumps_cabinet_has_fewer_lawyers_than_in_past_administrations

[https://perma.cc/YW75-83H8] (reporting that the number of lawyers in President Donald Trump’s cabinet trails that

of the past four presidents); Joe Palazzolo, In Short Supply in Donald Trump’s Cabinet: Lawyers, WALL ST. J. (Mar. 2,

2017), https://www.wsj.com/articles/in-short-supply-in-donald-trumps-cabinet-lawyers-1488463200 [https://perma.cc/

ND8L-KSSF] (reporting that only three of Trump’s sixteen cabinet picks have law degrees, including Vice President

Pence, a sharp drop from the four previous administrations). Oddly, the Trump Administration did have an abundance

of Ivy League graduates. See Stephen Marche, How Ivy League Elites Turned Against Democracy, THE ATLANTIC

(Jan. 5, 2022), https://www.theatlantic.com/ideas/archive/2022/01/ivy-league-apologists-january-6-gop-elitism-

populsim/621153/ [https://perma.cc/T3AS-YLJ9] (noting that Donald Trump’s inner circle included Steve

Bannon, Harvard ‘85, Ben Carson, Yale ‘73, Jared Kushner, Harvard ‘03, Steven Mnuchin, Yale ‘85, Mike

Pompeo, Harvard Law ‘94,Wilbur Ross, Yale ‘59, and Stephen Schwarzman, Yale ‘69; his inaugural Cabinet

had more Harvard alumni than his predecessor Barack Obama; and many of the strongest supporters of the

stolen-election theory have also been Ivy League graduates).

To those of us who believe in legal ethics—rules of

conduct that members of the legal profession are required to observe—this was

not a good sign. The presence of principled professionals might provide some

assurance that the Trump administration would not entirely reject the rule of

law.

5

That the few lawyers in high places in the Trump administration turned out to

disappoint on every level—they were some of the least ethical, least principled,

least truthful professionals imaginable—was bad for both the profession and the

polity. Something had to be done. And yet organized efforts by individual

Trump’s Inauguration, including his divisive, inflammatory Inaugural address, “with designs for shock, not

sweeping oratory,” including his reference to “American carnage”).

3.

4.

5. See W. Bradley Wendel, Government Lawyers in the Trump Administration, 69 HASTINGS L. J. 275, 284–

85 (2017) (discussing Trump’s threats to the rule of law). See also Ellen Yaroshefsky, Regulation of Lawyers in

Government Beyond the Representation Role, 33 NOTRE DAME J.L. ETHICS & PUB. POL’Y 151, 153 (2019) (dis-

cussing whether government lawyers should have special obligations beyond private lawyers and whether state

disciplinary committees should sanction Giuliani and other lawyers who “intentiona lly present false facts

because lawyers are sworn to uphold the Constitution and laws of the United States and pursue the fair adminis-

tration of justice”).

2022] CAN YOU BE A LEGAL ETHICS SCHOLAR AND HAVE GUTS? 431