In Memoriam: Ronald Rotunda and Legal Ethics

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Professional Responsibility & Legal Education Practice Group, was recorded on Wednesday, March 20, 2019, during a live teleforum conference call held exclusively for Federalist Society members.

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is an In Memoriam teleforum entitled "Ronald Rotunda and Legal Ethics." This teleforum is meant to commemorate his passing on March 14th of last year. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

As always, please note that all expressions of opinion are those of the expert on today's call.

Today we are fortunate to have with us Professor Thomas Morgan, who is an Oppenheim Professor Emeritus of Antitrust Law and Trade Regulation Law at George Washington University Law School. After our speaker gives his remarks, we will then go to audience Q&A. Thank you for sharing with us today. Tom, the floor is yours.

Prof. Thomas D. Morgan:  Thanks very much, Micah. Ronald D. Rotunda died just over a year ago in Orange County, California where he held a distinguished Chair in the law school at Chapman University. This memorial podcast series has been created by the Professional Responsibility & Legal Education Practice Group on whose executive committee Ron served. It's meant as a tribute to an outstanding scholar and longtime member of The Federalist Society.

Ron Rotunda was born February 14, 1945 in Blue Island, Illinois, just outside Chicago. He lived in Northern Illinois until he was 18 when he was lured to the East by a scholarship to Harvard College. He graduated magna cum laude from Harvard with a degree in government. He chose to stay in the East and when directly on to Harvard Law School, where he served on its Law Review and graduated in 1970, again magna cum laude.

Ron clerked in New York for Judge Walter Mansfield of the Second Circuit and then worked two years at Wilmer Cutler & Pickering in Washington. But at that point in 1973 he left private practice for a job as Assistant Counsel to the Select Senate Committee on Presidential Campaign Activities – the official name for Senator Sam Ervin's Watergate committee. That was the first of Ron's record two experiences pursing possible presidential impeachment. The second, of course, was his work with Judge Ken Starr investigating the Whitewater matter and other acts of President Clinton discovered during that investigation.

I first met Ron Rotunda in 1974 after Richard Nixon had resigned as president. Ron had gone on to the law teaching market, and he joined the faculty of his home state university, the University of Illinois, where I also taught. Ron agreed to work with me on a casebook I was trying to write on legal ethics. The book was partly in response to the ABA -- that's the American Bar Association's post-Watergate requirement that all law schools teach professional responsibility, allegedly to be sure no Watergate events would ever happen again.

In 1976 as an early entrant into the field, our book was widely adopted, and it has remained a leader in that field. Two years later, Ron and John Nowak of Illinois came out with an excellent one volume treatise on constitutional law. Harvard's Larry Tribe tried to equal it but never could. In 1981 West published Ron's own constitutional law casebook.

This account of his background helps explain how two fields came to dominate Ron Rotunda's professional career. One was constitutional law and the other legal ethics, the study of what principles govern the behavior of people serving in the extensively regulated role of attorney. The core of my remarks will be about Ron Rotunda's work on legal ethics questions, but I've chosen to focus mostly on his interest in ethics issues affected by his constitutional law expertise.

One ethics issue that spans almost all [of] Ron Rotunda's career was the regulation of lawyer advertising. That's really not any longer a hot-button issue. But particularly as methods of social communication have grown, it has remained important. And 40 or more years ago when Ron and others first confronted it, few issues seemed, to many lawyers, to be more central to what it means to be an attorney. The American Bar Association Canons of Professional Ethics, Canon 27, adopted in 1908 said, for example, it is unprofessional to solicit professional employment by circulars advertisements, through touters, or by personal communications or interviews, not warranted by personal relations. Any self-laudations offend the traditions and lower the tone of our profession and are reprehensible.

The language of that rule seems archaic and pretentious to most of us, but the prohibition had consequences. Indeed, lawyer advertising was long seen as so reprehensible that any lawyer who said something that could later be called self-laudatory could be professionally disciplined, even disbarred.

The ABA replaced the Canons Professional Ethics in 1970 with a new supposedly modern Code of Professional Responsibility. But the prohibition of advertising remained broad. Disciplinary Rule 2-101(A) provided, "A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients." This disciplinary rule and the rest of the ABA Code were adopted almost universally by the states, and they regulated lawyers all over the country.

By the mid-1970s when Ron joined the Illinois faculty, challenges to lawyer advertising appeared to raise, if anything, antitrust issues. As you've heard, antitrust was my other field, not Ron's. The United States Supreme Court had decided Goldfarb v. Virginia State Bar in 1975 and held that bar association adoption of minimum fee schedules constituted illegal price fixing. Many of us argued that restrictions on lawyer advertising were similarly anticompetitive in that they prevented clients from knowing what lawyers would do for them and what the services would cost.

Cases challenging the anti-advertising rules raised the antitrust issue, but the case on which the Supreme Court granted certiorari was inappropriate for antitrust analysis. The antitrust laws have a state action exemption that allows states to impose regulations that are highly anticompetitive and would be illegal if imposed by private parties. Bates v. State Bar of Arizona, the test case in this area of lawyer advertising, arose in a state whose court rules explicitly contained the advertising prohibition; thus, the U.S. Supreme Court rejected the antitrust challenge and engaged in a constitutional analysis instead.

In the mid-1970s the Constitution protected political speech, but commercial speech was fair game for regulation. The leading case was Valentine v. Chrestensen that said that New York could regulate distribution of leaflets advertising a tour of a submarine, even though regulating the distribution of political leaflets would've raised constitutional concern.

By the mid-1970s, however, the distinction was breaking down. In Bigelow v. Virginia in 1975, the Supreme Court said that Virginia could not publish a newspaper that published an advertisement for a New York abortion referral service. An abortion can be seen as a commercial service, and Roe v. Wade had recently been decided. The Court apparently did not want the availability of that procedure to go unnoticed. Similarly, Virginia Pharmacy Board v. Virginia Citizens Consumer Council in 1976 held that a pharmacist advertising of prescription drug prices was entitled First Amendment protection, in part because of a similar consumer interest in receiving information.

The Bates and O'Steen legal clinic had published an ad in Phoenix newspapers that said the firm charged only very reasonable fees, and then listed their fixed fees for several common routine services. The Court rejected the State's claim that a desire for lawyer professionalism justified this advertising prohibition. The Court reasoned, "If the commercial basis of the relationship is to be promptly disclosed on ethical grounds, once the client is in the office, it seems inconsistent to condemn the candid revelation of the same information before he arrives at that office." However, the Court did not declare the right to advertising to be unlimited. Justice Blackman wrote for the Court, "Advertising that is false, deceptive, or misleading, of course, is subject to restraint."

Ron Rotunda spent much of the remainder of his career condemning state efforts to limit the flow of truthful, non-misleading information between lawyers and their potential client. I believe that in a most fundamental sense this early concern animated Ron's position on a number of later public issues. Ron defended the view, for example, that lawyer ads cannot be compelled to be dignified. In today's world if what lawyers say had to be as dull as an SEC registration statement, no one would watch or read the ads, and the right to communicate truthfully would be hollow. The Supreme Court agreed with Ron.

The Court thus gave force to the constitutional protection of Bates when it decided Zauderer v. Office of Disciplinary Counsel in 1985. Lawyer Zauderer put an ad in 36 Ohio newspapers, offering to represent women injured by the use of Dalkon Shield Intrauterine Device, or IUD. The ad included a drawing of an IUD and a question, "Did you use this IUD?" The state of Ohio was shocked that a lawyer would be so unprofessional as to try to show potential clients what a highly personal product looked like. So it brought disciplinary charges against Attorney Zauderer. The Court rejected the State's position saying, "The use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech."

Further, the Court found that the State has no valid, regulatory interest in preserving the dignity of the legal profession's image saying, "Although the State undoubtedly has a substantial interest in ensuring that its attorneys behave with dignity and decorum in the courtroom, we are unsure that the State's desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment right. . . the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity."

The fact is that the position Ron Rotunda and others took has brought the world some truly bizarre lawyer ads that many of you may have seen and that make many of us cringe when we watch them. But Ron often said that such ads turn off as many potential clients as they attract, and potential clients are better served knowing that a given lawyer is a jerk before they hire him, rather than being required to learn it later.

In the months before his untimely death, Ron worked with a committee of the Association of Professional Responsibility Lawyers to help the ABA rewrite its current Rules of Professional Conduct to make still clear that only advertising that is false or misleading may be regulated. The ABA adopted amended rules in August 2018 after Ron's death. They may not back off regulation as far as he would've hoped, but I view it as a fitting final tribute – final triumph – for Ron Rotunda.

Ron's focus on the idea that the best cure for irritating speech is more speech I think helps explain his focus near the end of his career on a second free speech topic that has been of interest in The Federalist Society. The American Bar Association wants to be considered a progressive institution, and it views lawyer ethics as appropriate for revision in progressive ways. The ABA's proposed Rule of Professional Conduct 8.4(g) thus would prohibit a lawyer's alleged verbal or physical conduct that manifests bias or prejudice toward others in conduct related to the practice of law.

Adopted by the ABA House of Delegates in August 2016, over extensive objection from Ron Rotunda and others, the rule has met serious opposition in several states, studied indifference in most others, and has been adopted only in Vermont and in a revised form in California. The ABA has not backed away from its proposed rule, however, and candidates for the bar must assume the rule is the law when they take the MPRE exam. But what Ron saw is that what we find in the rule is another effort by bar authorities to regulate and control professional speech.

Ron and I used to disagree somewhat about the importance of moderating our own speech in order not to offend others. I tend to believe that the world has enough loud voices and verbal abuse, such that self-restraint is desirable. Ron tended to believe that in a diverse and complex world, we all need to develop tougher skins, and we can more properly swing for the verbal fences. But Ron and I both agreed that public regulation of the content of speech is fraught with danger, purporting to protect the most sensitive ears against what, typically after the fact, they say they found offensive can become a regulatory tool to try to punish political opponents, not primarily to protect a reasonable hearer or sensibility. That's the context, then, of ABA Model Rule 8.4(g), which makes it professional misconduct, that is a basis for discipline, including the loss of the right to practice, for a lawyer to "engage in conduct that the lawyer knows, or reasonably should know, is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law."

The comment to the rule makes clear that discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Further, according to the comments, the substantive law of antidiscrimination and anti-harassment statutes and case law may, but not must, guide application of Rule 8.4(g). In short, conduct or speech that shows a lawyer to be so vile that the lawyer may lose his or her license to practice can be defined and determined retroactively without proof of intent what disciplinary officials say they think the lawyer should have known is enough and without regard to standards that define discrimination by non-lawyers.

As he often did, Ron put the rule into context with an example. He wrote in the Harvard Law Record, not likely to be the most favorable publication for his views, "One lawyer tells another at the water cooler or a bar association meeting on tax reform, 'I [hate] the idle rich. We should raise capital gains taxes.' Rule 8.4. . . makes clear that it [reaches] any 'bar association, business, or social activities in connection with the practice of law.'" The water cooler comment qualifies. "The lawyer has just violated the ABA rule," Ron says, "by manifesting bias based on socioeconomic status. If the other lawyer responds, 'You're just saying that because you're a short, fat, hillbilly, neo-Nazi.', he's in the clear because those epithets are not in the sacred litany. This can't be what the ABA means," Ron says, "because it's always in good taste to attack the rich. Yet, that is what the rule says."

To be sure, there are laws governing conduct, such as employment discrimination and sexual harassment, to which lawyers can be held as much as any other employers and citizens. You and I may or may not think those laws are ideal, but we have history and standards that can give warning of what conduct is forbidden. Indeed, current state ethics rules on lawyer discrimination in the several states that have such rules typically refuse to prohibit conduct in which it's proper for non-lawyers to engage. But what the ABA proposes is to say that lawyers are at risk for any and all conduct that others later may try to say was improper.

There's a danger in even discussing the rule that one can sound churlish or petty because the reply is typically that bar officials will use common sense and do the right thing. But, of course, that's not necessarily true, particularly in a society where differences on policy can easily be asserted to describe moral failing. Ron Rotunda believed that clients and the public are better off when lawyers can make arguments that some members of the public understandably may resent. To the argument that most lawyers will have nothing to worry about because everyone knows they are reputable people, Ron made the correct response that even when a court does not enforce such rules, they will affect lawyers because good lawyers do not want to face any non-frivolous accusation that they're violating the rule, even winning a challenge to an asserted attack on a lawyer's ethical conduct can cast doubt on the lawyer's reputation that may last for years. So a lawyer's only protection will be to stay out of the public square.

I indicated earlier that we all might do well to tone down the opinions we express in the interest of a more civil discourse. But it is a long way from that position to putting a lawyer's license on the line every time he or she expresses a serious or even a smart aleck remark.

My point for including this example and a tribute to Ron Rotunda is that from the beginning of his career in the legal advertising issue to its very end, Ron say the public interest in having lawyers who can communicate their views to others, whether courts, clients, opposing parties, or the public at large, without fear or even excessive caution.

A third area of Ron Rotunda's interest was the field of judicial ethics. I won't have time today to go into much detail, but Ron recognized the risk that judicial ethics will be weaponized by litigants or critics to try to demean individual judges, their courts, or even cast doubt on the impartiality of the rule of law itself. Calls heard from members of Congress or presidential candidates to pack the Supreme Court or to have individual justices recuse themselves in important cases are just the opening wedge in this line of argument. Particularly in states where judges are elected, most depend on campaign contributions to help them get judicial positions.

In Caperton v. A.T. Massey Coal Company in 2009, the Supreme Court held that even issue-based expenditures in a judicial election that were paid for by a litigant in a case that reached the judge's court could require disqualification of the justice benefited by the otherwise constitutionally protected spending. The facts in Caperton were indeed extreme. But other questions have included what judicial candidates may say on subjects likely to come before their court and whether a candidate may personally solicit funds for her election. These judicial ethics issues were posed as constitutional due process questions. That is the court's decision was constitutionally invalid because the judge had an ethics deficiency.

Ron Rotunda's role in such debates was often to raise an alarm where the imposed solution was to suppress speech rather than to let otherwise constitutionally protected views be heard. Here, again, his views of legal ethics were formed by his sense of lawyers and judges in the larger constitutional scheme.

Another reality that runs all through Ron's work in legal ethics is the sense that lawyer's services allow people to make their way through a complex regulatory world and allow clients to maintain their personal freedom in a world that seeks to limit it. Legal assistance is critical to maintaining constitutional and other legal rights. That means keeping legal services widely available and at reasonable costs are important values that we must not allow to be suppressed by lawyer regulation of who may provide the services. Ron saw that technological advances can enhance provision of legal services at lower costs. He said that professional responsibility requires lawyers to embrace what technology can do for lawyers, rather than fall back on obsolete processes that might require more lawyer help than the situations really require for quality work.

A doctrinal illustration of Ron's leadership in technological issues was his early position on metadata. As you probably know, when you and I create documents on our computers, we leave an electronic trail of when and where we did it. With a few keystrokes, anyone can go behind the text to see who wrote and edited key elements. Such information can be helpful for groups who are producing documents together. But it can be embarrassing at trial to have a recipient of a document dated February 1st able to show that the document was really written by someone other than the purported author, or perhaps not even written until February 15th. Early official reaction to the issue of metadata was to say that it was simply unethical for a lawyer to try to look inside documents to try to get the hidden information. One shouldn't look behind the surface reality of an electronic document any more than he or she should eavesdrop at the lawyer's door or search through an opposing lawyer's garbage to try to find discarded document drafts.

But Ron disagreed. While lawyers should make use of the benefits of drafting documents electronically, they should not hide behind their technological ignorance of how to delete the metadata. Before sending a document, a drafting lawyer should remove the electronic trail that computers leave behind. We're not talking obstruction of justice here, such as by scrubbing documents once the law requires they be preserved. We're talking about what you would do with a paper document. You'd send the final version but not all of the underlying drafts.

In effect, Ron's view was confirmed by the ABA – its amendment to Model Rule 1.0 requiring that all lawyers become and remain technologically competent to protect their client's interest. But the issues of technology that will affect how law is practiced will not stop with metadata. Ron Rotunda recognized that making use of technological advances can be analogous to letting non-lawyers deliver legal services.

Just as a law firm or corporate legal department can streamline its own internal operations by using paralegals, and just as H&R Block can have non-lawyers prepare tax returns, Ron believed that Legal Zoom should be allowed to prepare standardized documents for lay people to file. Yet, other companies should be able to contest parking tickets using computer-generated filing. And non-lawyer document firms should be permitted, even encouraged, to cut the time spent on discovery to 10 percent or even less of what it was just a few years ago.

Lawyers who long to go back to wigs and quill pens have been scandalized by such attitudes. But I believe even Ron's early vision of computers practicing law will be realized sooner than most imagine. Indeed, if lawyers do not supply what consumers demand, non-lawyers will try to do so even without the ABA's blessing. And in my opinion, only in trying to make the delivery of legal services more efficient can we have a fighting chance of reaching an equilibrium in the supply and demand for legal services that has been the legal profession's rhetorical goal for decades.

In conclusion, then, we've seen that Ron Rotunda was a defender of lawyer free speech, both for lawyer's own interests but even more for in the interest of their clients and causes. He was someone who looked ahead to a world where legal services are more widely available, even if the services come from people and entities other than those who have passed a bar exam. But Ron had a softer, more reflective side. And I think we can best sum up Ron by quoting what he wrote in our casebook about the often ill-defined concept of professionalism.

Ron said, "Several years ago, Justice Harry Blackman said that if he had his life to live over, he would like to be a medical doctor. At the time, he was a U.S. Supreme Court Justice. One would think he was at the pinnacle of his career. Why would anyone want to trade that to become a doctor? One person who heard the story suggested, 'People often want to be doctors so that they can help people.'" But Ron said, "Lawyers help people, too. Granted, unlike engineers, we build no bridges. Unlike doctors, we mend no bones. Unlike architects, we design no buildings. Unlike artists, we paint no portraits. There is little that we do that they human hand can touch. But if we are doing our jobs properly, we take on other people's burdens. We relieve stress and we pursue justice. We enable mankind to live a little more peaceful and just life. We take the veneer of civilization and we make it a little thicker."

Those of us who knew Ron Rotunda will not forget him. By his interest in both legal ethics and constitutional law, Ron Rotunda indeed made the veneer of civilization thicker. The Federalist Society most appropriately names this lecture series in his honor.

Those are my remarks, and I think Micah will now be able to open the floor for your comments and questions.

Micah Wallen:  Thank you so much for those opening remarks, Professor. Let's now go to our first question.

Jack Park:  Hey, Tom. This is Jack Park. Thank you very much and thanks for your picture of Ron, who was a good, solid colleague and outstanding scholar and writer. I guess my question is a little bit different. In the wake of Janus and the North Carolina dentist case, what do you see about the future of the so-called integrated bars?

Prof. Thomas D. Morgan:  Just for people for whom this isn't their field, an integrated bar is a bar that all lawyers are required to join rather than a voluntary bar association of the kind that we think of in the American Bar Association, for example, where you're not charged dues and so on to be a member. Well, it really depends partly on what the enforcement policy of the Justice Department and FTC are going to be about bar association activities, such as the writing of ethics opinions, for example, which is one of the areas that people have expressed concern about. The benefit under the antitrust laws will be to have integrated bars because then, the organization issuing opinions, drafting regulations, and so on, will be an organization under the jurisdiction of the state Supreme Court and not subject to antitrust liability.

In terms of the issues of constitutional law, however, the speech issues that Ron focused on so much, that isn't going to help. The fact that it's an integrated bar makes it state action. If you make it a voluntary bar, I think, again, you're going to have a hard time avoiding liability if there's any disciplinary consequence to what the voluntary bar does.

Micah Wallen:  Not seeing any question jump into the line right off, Professor, did you have any closing remarks for us today?

Prof. Thomas D. Morgan:  Well, not really. I'm honored to have this chance to try to introduce Ron to people who haven't known him. And I hope to recall, for those who did know him, at least a few of the highlights of his broad and outstanding career.

Micah Wallen:  All right. Well, on behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned

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