Justice Ginsburg’s 1996 Speech on ‘Supreme Court Pronouncements on the Conduct of Lawyers’

The Bencher—March/April 2021

By John P. Ratnaswamy, Esquire

In 1996, Ruth Bader Ginsburg, associate justice of the Supreme Court of the United States, spoke about U.S. Supreme Court cases regarding lawyer conduct at Hofstra University. Her Hofstra speech may be found on the Hofstra website and her Hofstra speech, in video, also may be found on the C-Span website.

I thought that I would briefly distill and reflect on Ginsburg’s main points and topics in her 1996 speech:

Legal ethics is on the ascendancy in legal education. Ginsburg contrasted the 1950s and the 1990s. My subjective impression is that the increased emphasis on legal ethics has endured, although the topic still generally is not taught in the first year of law school. In a random survey of 10 law schools’ curricula for the first year, I found none that included a legal ethics class, although the topic very occasionally was mentioned as an item within the scope of more general classes on lawyering or civil procedure. There now are about a dozen different legal ethics courses taught at the Northwestern University School of Law, where I am an adjunct professor, which is much more than when I was a student there and when I started teaching.

Legal ethics regulation recognizes the different roles of lawyers but bears heavily on litigation-related ethics. In the American Bar Association’s (ABA’s) Model Rules of Professional Conduct, the largest set of rules (by number) is on the client-lawyer relationship in general, and the second largest is on the lawyer as advocate. In research I performed in 2018 on four states in four regions of the country, roughly half of the time that a lawyer discipline agency received a grievance, the grievance arose out of criminal or civil litigation practice.

The Supreme Court of the United States generally is not involved in legal ethics regulation other than when it is claimed that a state’s regulation violates the U.S. Constitution. The court, from the late 1970s to the mid-1990s, however, did issue a fairly large number of opinions on First Amendment issues in relation to lawyer advertising. Ginsburg discussed much of that case law, noting that “discomfort, distaste, and dissent attended these lawyer advertising decisions.” She did not address ethics rules in relation to judicial elections.

Ginsburg discussed the court’s sparse decisions on barriers to bar admission, including the court’s wrongful decision in Bradwell v. Illinois, 83 U.S. 130 (1873) to reject Myra Bradwell’s claim that a qualified woman had a right to be admitted to the bar. Ginsburg, in relation to Bradwell, noted that “the Brethren’s comprehension of a woman’s place was then, and for generations after, woefully inadequate.”

Ginsburg discussed the court’s jurisprudence on the attorney-client privilege and work product doctrine, but those topics technically differ from the generally broader scope of confidentiality under the ethics rules.

Finally, she discussed the court’s cases on regulation of speech by lawyers in court and about ongoing court proceedings. She noted some lack of precision in regulation of the latter. She did not address the subject of contempt findings or discipline for lawyers’ criticizing judges (see ABA MRPC 8.2(a)), but that is not surprising. The court has very sparse case law on that subject, and its major decisions long predated Ginsburg’s tenure, although the court fairly frequently receives and denies requests to appeal on the subject.

John P. Ratnaswamy, Esquire, is the founder of The Law Office of John Ratnaswamy, LLC, in Chicago, Illinois. He is an adjunct professor of legal ethics at the Northwestern University School of Law. He is the current chair of the American Bar Association Solo, Small Firm, and General Practice Division’s Committee on Ethics and Professional Responsibility. This column should not be understood to represent the views of any of those entities or his or the firm’s current or former clients.
© 2021 John P. Ratnaswamy, Esquire. This article was originally published in the March/April 2021 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.