Every August in Louisiana, hundreds of first-year law students gather in classrooms to hear local attorneys hold forth on the ethics of the legal profession. The panelists inform the students that they’ve acquired, by virtue of enrollment, a duty to uphold the legal profession’s largely self-imposed standards: Don’t lie, cheat, plagiarize, fudge résumés or share client confidences. Tread with caution when using social media. And dress appropriately for court. The message is straightforward, aspirational and generally noncontroversial — the 10 Commandments in legalese.
Straightforward, that is, until one of the students asks how this canon accommodates the fact that lawyers in Louisiana routinely argue before judges to whom they have given campaign money.
At this point, the panel of well-meaning attorneys, through now jocular and at ease, grows quiet. The lawyers exchange flitting glances and shift in their seats. Finally, one of them offers a vague and halting response citing to “tradition” and “congeniality,” and the panel returns with relief to the finer points of stocking patterns and Facebook etiquette. Those students deserve a better answer. And so does the rest of Louisiana.
Louisiana’s practice of allowing attorneys and parties to appear before judges whose campaigns they have bankrolled has attracted national attention in recent years, and never for positive reasons. In 2008, for example, Tulane and Loyola professors published a study that strongly suggested a disturbing connection between campaign cash and the voting habits of certain Louisiana Supreme Court justices. (Under attack from the court and its defenders, the professors later acknowledged minor data errors that did not alter the study’s ultimate suggestion of corruption, and a subsequent corrected version of the study actually strengthened its original conclusions.)
Two years later, Congress impeached New Orleans federal Judge Thomas Porteous for, among other charges, accepting money and other “things of value from attorneys who had cases pending before him.” Porteous, who was a state judge in Gretna for a decade before moving to the federal bench, defended his behavior as standard practice in Louisiana. Ninety-six U.S. senators found this practice unbecoming of a federal judge and convicted Porteous, making him just the eighth federal judge removed from office in this manner.
While Porteous’ deeds were of the cash-stuffed-envelope variety, studies show that even legally sanctioned gifts are widely believed — by lawyers, by the public, and by judges themselves — to influence rulings. This perception of corruption represents a threat to both rule of law and the constitutional due process rights of all Louisianians. In the words of U.S. Supreme Court Justice Anthony Kennedy, “the law commands allegiance only if it commands respect,” and it “commands respect only if the public thinks the judges are neutral.”
At a moment when federal campaign finance enforcers are conceding defeat in the face of a broadening flood of dark money, Louisiana’s civic leaders can seize this rare opportunity to make headlines for the right reason and chip away at the state’s hard-earned reputation for corruption. To that end, the Louisiana State Bar Association should recommend amending the Louisiana Code of Judicial Conduct to (1) require judges to publicly inform parties appearing before them of any perceived conflict of interest, including all campaign payments from the involved parties, attorneys and law firms; and (2) establish clearly defined rules mandating recusal when a significant perceived conflict exists.
Recognizing that many active lawyers and judges will be reluctant to criticize the system in which they operate, other community leaders must take the initial lead in calling for reform. Outgoing Tulane University President Scott Cowen did so last summer, heralding a citizen-driven departure from “a political culture of influence-peddling and cronyism” and declaring that “the fight is on.” Current Tulane President Michael Fitts, a lawyer by training, would do well by his predecessor to publicly advocate for these reforms, as would Tulane Law dean David Meyer, whose duties include maintaining my alma mater’s considerable reputation for civic involvement. Academics at Louisiana’s three other law schools — as well as retired state judges and prominent attorneys secure in their success — are similarly well-positioned to encourage the LSBA to act. At stake, after all, is nothing less than Louisianians’ faith in their courts — and the confidence of incoming law students every August.
Ben Fuchs is a 2014 graduate of Tulane University Law School.