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3. Lawyers who critique critical race theory…

Lawyer Discipline

Lawyers who critique critical race theory may challenge Connecticut’s anti-bias ethics rule, 2nd Circuit says

By Debra Cassens Weiss

December 10, 2024, 12:45 pm CST

Two lawyers who fear their comments could lead to discipline under Connecticut’s anti-bias ethics rule have standing to sue, a federal appeals court ruled Monday.

The New York-based 2nd U.S. Circuit Court of Appeals revived a First Amendment lawsuit by Mario Cerame and Timothy Moynahan, report Law360, Reuters and Law.com.

Cerame and Moynahan say they regularly speak out “in forceful terms” on issues that include the free exercise of religion and critical race theory. Those with opposing viewpoints may construe the remarks as personally derogatory or demeaning, they say.

Contemplated comments by Cerame and Moynahan “are arguably proscribed” by the Connecticut ethics rule, the appeals court said in the Dec. 9 decision by Chief Judge Debra Ann Livingston, an appointee of former President George W. Bush.

Connecticut Rule of Professional Conduct 8.4(7) took effect in 2022. It bars conduct related to the practice of law that a lawyer knows or reasonably should know is harassment or discrimination based on 15 protected characteristics. Those characteristics include race, color, ancestry, sex, religion, sexual orientation, gender identity and gender expression.

The rule defines discrimination to include “harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories.” It defines harassment to include “severe or pervasive derogatory or demeaning verbal or physical conduct.”

A “carve-out” in commentary to the ethics rule states that conduct protected under the First Amendment does not violate the rule.

While the First Amendment carve-out could make an ethics complaint more unlikely, it “is not enough to negate [the lawyers’] reasonable fear that their proposed speech” may be banned by the rule, Livingston said.

Connecticut is one of just a few jurisdictions that have adopted anti-bias rules that are “substantially similar” to Rule 8.4(g) of the ABA Model Rules of Professional Conduct, which was adopted in 2016, the appeals court said.

In their lawsuit, Cerame and Moynahan listed the kind of comments that could lead to ethics complaints in Connecticut if made by other lawyers. Examples could include a failure to use a transgender person’s preferred pronouns, using the term “gender preference” rather than “gender orientation,” telling jokes that could offend some members of protected groups, publishing cartoons that mock a religious deity, or espousing theories that socioeconomic disparities are largely due to disparities in cognition and social behaviors among racial groups.

Cerame and Moynahan are represented by the New Civil Liberties Alliance. NCLA president Mark Chenoweth commented in a press release.

The 2nd Circuit decision “gets the rules of First Amendment standing right,” Chenoweth said. “The court distinguished on two grounds the 3rd Circuit’s recent case denying standing to plaintiffs challenging a similar rule. First, Pennsylvania’s rule, unlike Connecticut’s, focuses on intentional harassment or discrimination. Second, the Pennsylvania Office of Disciplinary Counsel interpreted the rule there not to prohibit general discussion of controversial ideas and specifically blessed plaintiffs’ planned speech as not violating the rule. Not so in Connecticut, where the rule at issue is stricter.”

The Connecticut case is Cerame v. Slack.

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3. Who may be on Trump’s Supreme Court short…

U.S. Supreme Court

Who may be on Trump’s Supreme Court short list? Senate win aids judicial picks

By Debra Cassens Weiss

November 6, 2024, 3:12 pm CST

President-elect Donald Trump could get a chance to appoint two U.S. Supreme Court justices if Justice Clarence Thomas, 76, and Justice Samuel Alito, 74, decide to retire.

“With two more appointees,” Law360 reports, “Trump could single-handedly cement the Supreme Court’s conservative supermajority for decades to come.”

These judges and lawyers are potential nominees, according to Law360, an op-ed in the New York Times by the editor of a liberal blog, Fox News and a Bloomberg Law story on potential Asian American and Pacific Islander picks.

  • Judge Stuart Kyle Duncan, the 5th U.S. Circuit Court of Appeals in New Orleans. He is the former general counsel for the Becket Fund for Religious Liberty. He was in the news in January 2020 for an opinion in which he refused to refer to a transgender inmate by her preferred female pronouns. (Law360, Fox News, the New York Times)

  • Judge Andrew S. Oldham, the 5th Circuit at New Orleans. He is former general counsel for Republican Texas Gov. Greg Abbot. (Law360, Fox News)

  • Judge James C. Ho, the 5th Circuit at New Orleans. He is a former Texas solicitor general. In 2022, he said he won’t be hiring future Yale Law School grads as clerks because the university cancels conservative views. (Law360, Fox News, the New York Times, Bloomberg Law)

  • Judge Amul Thapar, the 6th Circuit at Cincinnati. He is a former Williams & Connolly lawyer. He has suggested that conservatives withhold donations to law schools that don’t teach originalism. (Law360, Fox News, Bloomberg Law)

  • Judge Joan Larsen, the 6th Circuit at Cincinnati. She was formerly a Michigan Supreme Court justice. (Fox News)

  • Judge Gregory G. Katsas, the U.S. Court of Appeals for the District of Columbia Circuit. He is a former Jones Day lawyer and a former deputy counsel in the Trump White House. (Law360, Fox News)

  • Judge Neomi Rao, the D.C. Circuit. She was the administrator for the Office of Information and Regulatory Affairs in the Trump administration. (Fox News, Bloomberg Law)

  • Judge Lawrence VanDyke, the 9th Circuit at San Francisco. He is a former Gibson, Dunn & Crutcher lawyer and a former solicitor general in Nevada and Montana. He received a “not qualified” rating by the ABA Standing Committee on the Federal Judiciary, which cited an “entitlement temperament.” (Law360, Fox News, the New York Times)

  • Judge Patrick Bumatay, the 9th Circuit at San Francisco. He was the first openly gay judge to serve on the 9th Circuit. (Bloomberg Law)

  • Judge Kenneth Lee, the 9th Circuit at San Francisco. He wrote an opinion finding that a ban on gun advertising that appeals to minors was likely unconstitutional. (Bloomberg Law)

  • Judge Barbara Lagoa, the 11th Circuit at Atlanta. She is a former Florida Supreme Court justice and former Greenberg Traurig lawyer. (Fox News)

  • Judge Britt Grant, the 11th Circuit at Atlanta. She is a former Georgia Supreme Court justice. (Fox News)

  • Judge Kevin Newsom, the 11th Circuit at Atlanta. He was formerly the Alabama solicitor general. (Fox News)

  • Judge Michael Park, the 2nd Circuit at New York. He formerly was a lawyer at Wilmer Cutler Pickering Hale and Dorr; Dechert; and Consovoy McCarthy Park. (Bloomberg Law)

  • Judge David Stras, the 8th Circuit St. Louis. He is a former Minnesota Supreme Court justice. (Fox News)

  • Judge Allison Jones Rushing, the 4th Circuit at Richmond, Virginia. She was a Williams & Connolly lawyer. (Fox News)

  • Kate Comerford Todd, a former deputy counsel in the Trump White House. (Fox News)

  • U.S. District Judge Aileen M. Cannon, the Southern District of Florida. She dismissed the classified documents case against Trump. (Law360)

  • U.S. District Judge Patrick Wyrick, the Western District of Oklahoma. He was formerly an Oklahoma Supreme Court justice. (Fox News)

  • Kristen Waggoner, CEO and general counsel at Alliance Defending Freedom. (Law360, Fox News, the New York Times)

  • Republican U.S. Sen. Tom Cotton of Arkansas. (Fox News)

  • Republican Sen. Mike Lee of Utah. (Fox News)

  • Morse Tan, the former dean of the Liberty University School of Law, who is now the senior executive director of Liberty University’s Center for Law & Government. (Bloomberg Law, the New York Times)

  • Former North Carolina Supreme Court Chief Justice Mark Martin, founding dean of High Point University’s law school. (The New York Times)

Confirmation of Trump’s judicial nominees will be easier when Republicans take control of the U.S. Senate, Law360 reports.

Republican Sen. Charles Grassley of Iowa intends to reclaim his position as chair of the Senate Judiciary Committee that will consider Trump’s choices, a Grassley spokesperson told Law360.

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3. 2nd Circuit sticks to its guns on constitutionality…

Second Amendment

2nd Circuit sticks to its guns on constitutionality of concealed-carry law after SCOTUS remand

By Debra Cassens Weiss

October 28, 2024, 2:07 pm CDT

New York residents can’t carry handguns in sensitive locations and must show evidence of good moral character when applying for a concealed-carry license.

Those provisions of a New York law remain in effect as a result of a decision last week by a federal appeals court.

The Oct. 24 decision by the 2nd U.S. Circuit Court of Appeals at New York left intact most of the state’s Concealed Carry Improvement Act, according to an Oct. 24 press release by New York Attorney General Letitia James.

The 2nd Circuit ruled after the U.S. Supreme Court directed the appeals court to reconsider its prior decision in the case in light of United States v. Rahimi. In the June Rahimi decision, the Supreme Court upheld a federal law banning gun possession by those who are subject to domestic-violence restraining orders.

The statute in Rahimi is “quite different” from the law at issue in the 2nd Circuit case, the appeals court said. But the methodology used by the Supreme Court is significant, the appeals court said, because it recognizes that the Second Amendment isn’t a right to carry any weapons in any manner and for whatever purpose.

Based on that methodology, the appeals court allowed enforcement of New York’s gun ban in sensitive places that include behavioral and drug treatment centers, public parks, zoos, bars and theaters.

The appeals court didn’t rule on a ban on guns in houses of worship, however, because the challenge became moot after the state changed the law to allow designated security teams to carry guns in those locations.

The 2nd Circuit also allowed enforcement of provisions that require concealed-carry permit holders to demonstrate good moral character.

The New York law’s definition of character “is a proxy for dangerousness: whether the applicant, if licensed to carry a firearm, is likely to pose a danger to himself, others or public safety,” the appeals court said.

Given the nation’s history of laws banning misuse of firearms by those who threaten physical harm to others, the 2nd Circuit said, it can’t conclude that every denial on character grounds will violate the Second Amendment.

The appeals court did see constitutional issues, however, with provisions requiring concealed-carry applicants to disclose their social media accounts and creating a default presumption that guns are banned on privately owned property open to the public.

The decision still allows private property owners to ban guns on their property, including by posting signs, according to James’ press release.

Law360 and the Brooklyn Daily Eagle covered the opinion, while How Appealing linked to an additional news story.

Erich Pratt, senior vice president of Gun Owners of America, a nonprofit organization, told Law360 that the 2nd Circuit ruling is “nearly identical” to the 2nd Circuit’s prior decision. The 2nd Circuit “got it wrong the first time,” and the new decision is “a slap in the face” to the Supreme Court and New York gun owners, Pratt said.

New York had adopted the Concealed Carry Improvement Act after the Supreme Court struck down its prior law that requiring a showing of “proper cause” to obtain a concealed-carry gun license. The Supreme Court’s decision, New York State Rifle & Pistol Association Inc. v. Bruen, was issued in June 2022.

The 2nd Circuit’s decision is Antonyuk v. James.

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3. 2nd Circuit cites push notifications to jurors…

Tort Law

2nd Circuit cites push notifications to jurors as one reason why Sarah Palin deserves new defamation trial

By Debra Cassens Weiss

August 28, 2024, 2:54 pm CDT

Former Alaska Gov. Sarah Palin, a Republican, is entitled to a new trial in her defamation case against the New York Times, partly because a jury finding of no liability was marred by push notifications received by jurors, a federal appeals court ruled Wednesday.

The 2nd U.S. Circuit Court of Appeals at New York said U.S. District Judge Jed Rakoff of the Southern District of New York wrongly intruded on the province of the jury when he ruled during deliberations that the case should be dismissed because of insufficient evidence that the newspaper and one of its editors acted with actual malice.

Rakoff allowed the jury to issue a verdict anyway, and it found no liability. But the verdict was marred by some of Rakoff’s decisions and by push notifications that some jurors received about Rakoff’s finding of no actual malice, the appeals court said in its Aug. 28 opinion.

Law360 covered the 2nd Circuit’s decision in favor of Palin, a Republican who was the 2008 vice presidential candidate. She had sued over a June 2017 editorial linking the shooting of a Democratic congresswoman with a digital crosshairs graphic published by Palin’s political action committee.

Rakoff’s law clerk had learned about the push notifications when interviewing jurors following the verdict to see whether they had problems understanding the legal instructions.

A push notification from a news application can appear at the top of a cellphone or on a lockscreen even when the app is closed, the 2nd Circuit explained.

Jurors said they were not prejudiced by the push notifications, which were “an unfortunate surprise” to Rakoff, the appeals court said. But Rakoff was wrong in concluding that the jury verdict was not prejudiced, the appeals court concluded.

“Given a judge’s special position of influence with a jury, we think a jury’s verdict reached with the knowledge of the judge’s already-announced disposition of the case will rarely be untainted, no matter what the jurors say upon subsequent inquiry,” the 2nd Circuit said. “We therefore conclude that a new trial is warranted on this basis.”

The 2nd Circuit panel also said Rakoff erred by excluding some evidence offered by Palin and by improper jury instructions.

The New York Times editorial had linked a 2011 shooting that wounded then-U.S. Rep. Gabby Giffords, a Democrat from Arizona, to a map by Palin’s political action committee showing targeted electoral districts in a crosshairs. Six people were killed in the shooting, including a federal judge.

The New York Times had declared that “the link to political incitement was clear,” even though the attack was viewed as stemming from the perpetrator’s mental illness, according to the 2nd Circuit.

The New York Times later issued corrections saying the crosshairs were placed over targeted electoral districts, not photos of politicians, and saying there was no established link between political rhetoric and the shooting.

Palin sued the New York Times and James Bennet, then the editorial page editor, who had written the sentence about the link to political incitement being clear.

The 2nd Circuit said Rakoff should have allowed evidence that Bennet’s brother, Michael Bennet, was a Colorado Democratic U.S. senator, that Bennet was involved in his brother’s 2010 reelection bid, that the crosshairs map targeted the districts of two Democrats in the House of Representatives who endorsed Bennet’s brother, and that Palin had endorsed the person running against Sen. Bennet.

The appeals court said the evidence was relevant, and it could lead a reasonable juror to infer that Bennet had “a reason to personally dislike Palin, and that it was therefore more likely that he intentionally or recklessly, rather than inadvertently, connected her” to the shooter who wounded Giffords.

Rakoff should also have allowed introduction of three prior New York Times opinion articles that could “be plausibly read” as casting significant doubt on links between the shooting and the crosshairs map, the 2nd Circuit said. Bennet had testified that he “must have read” the prior articles.

Judge John M. Walker Jr., an appointee of former President George H.W. Bush, wrote the panel opinion. It was the second time that the 2nd Circuit ruled in the case. Rakoff had previously tossed the case without a trial, but the appeals court ruled in 2019 that he followed the wrong procedure and reinstated the lawsuit.

The case is Palin v. New York Times Co.

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3. Accused of ‘overly harsh’ management style,…

Judiciary

Accused of ‘overly harsh’ management style, federal judge agrees to counseling

By Debra Cassens Weiss

March 28, 2024, 10:30 am CDT

A federal judge has acknowledged an “overly harsh” management style and agreed to take remedial training after a law clerk complained about abusive and harassing conduct, according to a Dec. 15 order released this week.

The judge’s name was not released in the Dec. 15 order by Chief Judge Debra Ann Livingston of the judicial council of the 2nd U.S. Circuit Court of Appeals at New York. The order dismissed the clerk’s complaint because the judge agreed to take corrective action and because other actions by the judge did not amount to misconduct.

The judicial council of the 2nd Circuit denied the clerk’s petition for review in a March 25 order.

According to Reuters, the case is “a rare instance” of the federal judiciary publicly addressing misconduct claims under new polices adopted in 2019. Law360 also has coverage.

The law clerk at first sought assisted resolution under an employment dispute resolution plan. The clerk transferred to a different judge and then filed an October 2022 complaint about the first judge’s staff treatment and added additional allegations.

The investigation that followed revealed that other law clerks “agreed that the judge’s management style could be overly harsh,” although they said they learned a lot from the judge.

The order said the judge “shared on several occasions how deeply troubled and saddened the judge was at hearing the concerns expressed by the complainant and others and wanted it to be clear that the judge is committed to creating a better workplace environment for chambers staff.”

The order also noted that clerks’ experiences “have generally improved” since the complaints were brought to the judge’s attention.

The judge will participate in counseling about workplace conduct, watch workplace videos and webinars, and inform law clerks about complaint procedures. The judge has also agreed that the circuit director of workplace relations can check in with law clerks at about the midpoint of their terms through August 2025 or longer than that if additional concerns arise.

The complaining law clerk had also complained that the judge had:

  • Accepted gifts from staff members. One was a framed newspaper cutting from the 1970s featuring the judge’s favorite band, a gift from an outgoing law clerk. The other was a jar of grape jam from a staff member vacationing in New Hampshire. The “de minimis” gifts “fall well within” an exception to the ban on accepting gifts, the Dec. 15 order said.

  • Communicated by text with an attorney. The texts consisted of the attorney congratulating the judge on an accomplishment and “a perfunctory back-and-forth of a few exchanges related to that accomplishment.” The attorney had a pending criminal case, but it was not before the judge. The texts do not raise concerns about ex parte communications, the Dec. 15 order said. “Given many judges’ long practice histories within their districts and circuits, these types of relationships and communications about personal matters are not uncommon, and without more, do not give rise to any ethical concerns.”

  • Conducted research on the assets of a defendant who failed to appear for a status conference. The judge, in coordination with the court’s pretrial and probation department, looked at public property records to determine whether the defendant’s bail should be secured. The judge’s actions were not improper, according to the Dec. 15 order.

The unnamed judge is within the 2nd Circuit. The news follows an Original Jurisdiction post about complaints by clerks working for U.S. District Judge Aileen Cannon of the Southern District of Florida, who is overseeing the classified documents case against former President Donald Trump. The Southern District of Florida is within the 11th Circuit at Atlanta.

Clerks working for Cannon reported positive experiences—until she was assigned the documents case in August 2022. The blog described 80-hour workweeks, exacerbated by a delay in a security clearance for one of the clerks; a style of micromanagement; a clerk who quit in October 2023 because she wanted to spend more time with her baby; and a second clerk who quit, apparently in December 2023.

Original Jurisdiction noted a law professor’s assessment of the situation—he said law clerks never quit. A current law clerk for a different judge told Original Jurisdiction that it is not true.

“Clerks do quit,” the anonymous clerk said. “I bet if you were to ask law professors what percentage of clerks quit a clerkship, they’d say less than 1%. I would put the actual number at 5% or more based on my peers, forums, word of mouth, etc.”