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Ethics

Lawyers representing transgender plaintiffs face possible sanctions for alleged ‘judge shopping’

By Debra Cassens Weiss

March 25, 2024, 12:45 pm CDT

A federal judge in Alabama has directed 11 lawyers to show cause why they shouldn’t be sanctioned for alleged “judge shopping” in lawsuits challenging a ban on some gender-affirming medical procedures for transgender minors in the state.

On March 19, U.S. District Judge Liles C. Burke of the Northern District of Alabama, an appointee of former President Donald Trump, unsealed an October 2023 report, which found that 11 out of 39 lawyers for the plaintiffs tried to circumvent random case assignment procedures. The report was conducted by a panel of three Alabama federal judges after Burke expressed concern about judge shopping.

Also on March 19, Burke unsealed his order to show cause, which was initially filed Feb. 21.

Law360, Reuters, Bloomberg Law and the Volokh Conspiracy have coverage.

“It is one thing for attorneys to fret about potential judicial assignments before the ball is snapped (i.e., before a case is assigned),” the three federal judges wrote in the unsealed report. “It is another to try to change the play after the case has been assigned.”

The plaintiffs’ lawyers dropped two suits challenging the transgender medical law after the cases ended up before Burke. A new challenge with different plaintiffs was then filed in the Middle District of Alabama, where U.S. District Judge Myron H. Thompson, an appointee of former President Jimmy Carter, is located.

The new case was not assigned to Thompson, however. It was instead assigned to Burke, who “perhaps ironically,” the report said, blocked a section of the law banning puberty blockers, according to NPR. A federal appeals court later lifted Burke’s injunction.

Lawyers had failed to get one of the two initial cases before Thompson by marking the civil cover sheet as related to a previous case in which Thompson ruled for transgender plaintiffs in a challenge to Alabama’s policy regarding sex changes on driver’s licenses, according to the Associated Press.

The 11 lawyers are ordered to appear before Burke on May 22 and 23 for a sanctions hearing.

Burke’s order directs the lawyers to show cause why they shouldn’t be sanctioned for judge shopping and for misrepresenting or failing to disclose key facts during the inquiry. Certain lawyers were also ordered to show cause whether they should be sanctioned for deliberately misleading the three-judge panel and for failing to get their clients’ consent before dismissing one of the cases.

According to news coverage, the 11 lawyers were from these groups and law firms: the Southern Poverty Law Center, GLBTQ Advocates & Defenders, the American Civil Liberties Union, the ACLU of Alabama, the National Center for Lesbian Rights, Lambda Legal, Lightfoot Franklin & White, Cooley, and King & Spalding. (The King & Spalding lawyer is now with a different firm, while the Lambda Legal lawyer is now with the U.S. Department of Justice.)

Representatives of the groups and firms defended the work of their attorneys, according ti Law360. A Cooley representative told the publication that its attorneys “carried out their responsibilities appropriately and acted with integrity in this matter.”

A Lightfoot Franklin representative told Law360 that the firm is “confident that our attorneys acted in good faith and with no intent to violate any law, rule or established caselaw.”

Burke is sitting by designation in the case, Boe v. Marshall, filed in the Middle District of Alabama.

See also:

“‘Judge shopping’ in federal courts should end, House urges”

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Immigration Law

Group representing immigration judges told to get approval before speaking publicly

By Debra Cassens Weiss

March 5, 2024, 3:28 pm CST

A group representing immigration judges has spoken out in the past to criticize court administration and advocate for more independence.

But now, representatives for the National Association of Immigration Judges can’t speak to Congress, journalists and professional forums without Department of Justice approval, report the Associated Press and Government Executive. They are also banned from writing articles and blog posts absent approval.

The ban was imposed in a Feb. 15 directive by Judge Sheila McNulty, the chief immigration judge of the DOJ’s Executive Office of Immigration Review, which is the DOJ office that oversees the immigration court system.

McNulty said any bargaining agreement that preserved a right to speak out is no longer valid because the National Association of Immigration Judges lost its recognition as a union in November 2020. The National Association of Immigration Judges is appealing that decision by the Federal Labor Relations Authority.

Th AP reached out to union leaders Mimi Tsankov and Samuel B. Cole for comment. They said they were not permitted to comment without approval.

Matt Biggs, president of the International Federation of Professional and Technical Engineers, called the directive “pretty draconian” and “pretty unprecedented” in an interview with Government Executive. The federation is the parent union to the National Association of Immigration Judges.