American Journal of Trial Advocacy

Photo Credit: Jabin Botsford, President Donald Trump signs executive orders at the White House on Monday (photograph), in Here are the executive actions and orders Trump signed on Day 1, The Washington Post (Updated Jan. 23, 2025), https://www.washingtonpost.com/politics/2025/01/20/trump-executive-orders-list/.

Authored by: Kramer B. Mittendorf

Since the start of President Donald Trump’s second term, he has signed 99 executive orders (“EOs”).[1] Among them are orders establishing the Department of Government Efficiency (EO 14158), banning biological men from competing in women’s sports (EO 14201), and prohibiting transgender people from serving in the United States’ military (EO 14183).[2] On January 20, 2025, President Trump issued Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship”[3] (hereinafter “The Citizenship Order”). The Citizenship Order, slated to have prospective effect only, seeks to eliminate birthright citizenship as proscribed in the 14th Amendment of the United States Constitution.[4] In a nutshell, the Citizenship Order, if enforced, would deny U.S. citizenship to children born in the U.S. based on the immigration and/or resident status of a child’s parents at the time of said child’s birth.[5]

President Trump’s Citizenship Order has been met with strong resistance since its issuance. Federal district courts in Washington, Maryland, and Massachusetts held that the Citizenship Order was unconstitutional and granted separate preliminary injunctions universally blocking the Citizenship Order from taking effect.[6] President Trump filed a motion to stay the injunction granted in Massachusetts, which spans 18 states across the country, but his motion was denied in New Jersey, et al. v. Trump.[7] Shortly thereafter, he and his administration asked the Supreme Court to limit the enforceability of the injunction to the areas where those seeking the injunctions actually lived, which would allow the Citizenship Order to take effect in other States.[8] If the Supreme Court does ultimately decide to hear argument on the Citizenship Order, the Court would almost certainly hold that the Citizenship Order is in-fact unconstitutional as a violation of the 14th Amendment and long-standing precedent.

Without a doubt, President Trump’s high usage of EOs has been a defining characteristic of his second presidency up to this point. However, history reveals that presidents have wielded their executive authority through executive orders long before Trump occupied the White House. For reference, while in office, Franklin D. Roosevelt issued 2,023 EOs, Lyndon B. Johnson issued 325 EOs, and Ronald Reagan issued 381.[9] More recently, former presidents such as Bill Clinton, George W. Bush, and Barack Obama issued 364, 291, and 277 EOs, respectively.[10] Therefore, while President Trump’s EOs may be considered more controversial than those of his predecessors, it is unfair to criticize his overall use of EOs when prior presidents have also used them extensively. This practice of issuing large numbers of EOs, employed by the current president and past presidents alike, raises several key questions: What is the source of a president’s authority to issue EOs? What are the limits of this power? And why have presidents continued to exercise it at such a high degree?

Origins of Presidential Authority to Issue Executive Orders.

Article II, Section 1 of the United States Constitution states that “[t]he executive power shall be vested in a President of the United States of America.”[11] The Constitution proceeds to list several powers exclusively belonging to the president which includes: being the “Commander in Chief,” the power to pardon those charged with violating federal law, making treaties with foreign nations, appointing “Judges of the supreme Court” and other Officers, and the power to veto bills passed by Congress.[12] Notably, nowhere in the text does the Constitution explicitly authorize the president to issue executive orders. Nevertheless, the foundation for the president’s authority to issue EOs stems from a combination of the president’s broad “executive power” granted in Article II, Section 1, and the duty granted to the President in Article II, Section 3 to “take Care that the Laws be faithfully executed.”[13] In addition to this Constitutional basis, the president’s power to issue EOs may also be authorized by an act of Congress.[14] Justice Hugo Black articulated this point in Youngstown Sheet and Tube Co. v. Sawyer when he said “[t]he President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”[15]

Limitations on the President’s Authority to Issue Executive Orders.

In Youngstown, the Court reviewed a constitutional challenge to an EO signed by President Harry Truman.[16] The EO in controversy demanded that the government “take possession of and operate most of the Nation’s steel mills” to ensure the continued production of steel, amidst ongoing labor disputes, during a time of War.[17] The Court held that President Truman’s EO was unconstitutional because it was not supported by any provision of the Constitution, including the President’s expansive military powers, nor was it directed by an express grant of power by Congress.[18] The Court noted that taking “possession of private property in order to keep labor disputes from stopping production” is Congress’ job rather than the President’s and drew a distinction between a President rightfully “see[ing] that the laws are faithfully executed” and engaging in unconstitutional lawmaking.[19] Justice Jackson, in his famous concurring opinion, wrote that a President’s powers exist on a spectrum.[20] Presidential authority is at its maximum when the president “acts pursuant to an express or implied authorization of Congress,” and is at its “lowest ebb” when the president “takes measures incompatible with the expressed or implied will of Congress.”[21] When Congress is silent on a particular matter, the president operates in a “zone of twilight.”[22] Congress may also “override an executive order” by passing new, opposite laws in certain circumstances.[23] In summary, executive orders are limited to the bounds of the Constitution and Congress, and are scrutinized for exceeding these bounds by the judiciary.

Making Sense of Why Executive Orders are Heavily Featured in our Government.

With the way America’s system of government is organized, the ability to legislate is a difficult process. As is often the case, the sitting President belongs to a different political party than the party holding a majority in the House or Senate. This pits the executive and legislative branches against each other, with the executive branch unable to implement certain policies through the traditional congressional process. As a result, presidents have issued EOs as a work around Congress which explains why executive orders typically represent the individual viewpoint of the President who issues it as opposed to the views of congressmen and women from both sides of the aisle. The divisive political climate of the last 15 years has further influenced recent presidents to issue EOs with EOs being used recently to backtrack the work done by the departing president and so on. If both sides are unable to work together and bills cannot make it through a bi-partisan Congress, EOs may serve as the only method of achieving anything during a presidential term. Right now, of course, Republicans maintain control of both the House and the Senate which suggests that presidents issue large numbers of EOs regardless of the state of power in Congress. The historical data mentioned above shows EOs have been issued by presidents in large numbers throughout history and based on what’s happening today, it appears this trend will continue into the foreseeable future.

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[1] 2025 Donald J. Trump Executive Orders, Federal Register, https://www.federalregister.gov/presidential-documents/executive-orders/donald-trump/2025 (last visited March 27, 2025).

[2] Id.

[3] Exec. Order No. 14160, 90 FR 8449 (Jan. 20, 2025).

[4] Id.; U.S. Const. amend. XIV, § 2 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”).

[5] Id. (“Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”).

[6] Washington, et al. v. Trump, No. C25-0127-JCC, 2025 WL 272198, (W.D. Wash. Jan. 23, 2025); CASA, Inc. v. Trump, No. DLB-25-201, 2025 WL 408636, (Feb. 5, 2025); Doe v. Trump, No. 25-10135-LTS, 2025 WL 485070, (D. Mass. Feb. 13, 2025).

[7] No. 25-1170, 2025 WL 759612, (1st Cir. March 11, 2025).

[8] Amy Howe, Trump asks Supreme Court to step in on birthright citizenship, SCOTUSblog (Mar. 13, 2025, 4:37 PM), https://www.scotusblog.com/2025/03/trump-asks-supreme-court-to-step-in-on-birthright-citizenship/; Scott Bomboy, Birthright citizenship cases arrive at the Supreme Court, National Constitutional Center (Mar. 14, 2025), https://constitutioncenter.org/blog/birthright-citizenship-cases-arrive-at-the-supreme-court.

[9] Presidential Documents, Federal Register, https://www.federalregister.gov/presidential-documents (last visited March 27, 2025).

[10] Id.

[11] U.S. Const. art. II, § 1, cl. 1.

[12] U.S. Const. art. II, § 2, cl. 1-2; U.S. Const. art. I, § 7, cl. 2.

[13] U.S. Const. art. II, § 3.

[14] Scott Bomboy, Defining the president’s constitutional powers to issue executive orders, National Constitutional Center (Jan. 29, 2025), https://constitutioncenter.org/blog/defining-the-presidents-constitutional-powers-to-issue-executive-orders.

[15] 343 U.S. 579, 585 (1952).

[16] Id. at 582.

[17] Id.

[18] Id. at 585-89.

[19] Id. at 587.

[20] Youngstown, 343 U.S. 579 at 634-35 (Jackson, J., concurring).

[21] Id. at 635-37.

[22] Id. at 637.

[23] Scott Bomboy, Defining the president’s constitutional powers to issue executive orders, National Constitutional Center (Jan. 29, 2025), https://constitutioncenter.org/blog/defining-the-presidents-constitutional-powers-to-issue-executive-orders.

Photo Credit: Rhame & Gorrell Wealth Management, What You Need To Know About The SECURE Act 2.0, https://rgwealth.com/insights/what-you-need-to-know-about-the-secure-act-2-0/

Authored by: Mary-Michael Rhodes

The SECURE Act.

In 2019, Congress passed the Setting Every Community Up for Retirement Enhancement Act (hereinafter the “Act”) as part of a spending and tax extension bill. The Act, commonly referred to as the SECURE Act, was aimed to do exactly what it was named for – allowing widespread ability for Americans to save for their retirement.[1] More specifically, the Act was enacted in the hopes of allowing easier ability to employers to offer tax advantageous retirement plans and making it easier for employees to participate in those plans.[2] The Act was enacted to address the increasingly low number of working individuals who had adequate retirement savings.[3] At the end of 2022, Congress passed the SECURE 2.0 Act[4] (hereinafter “SECURE 2.0”) which added numerous provisions to the Act.[5]

New Requirements Under SECURE 2.0.

Section 101 of SECURE 2.0 expanded automatic enrollment in retirement plans by amending the Internal Revenue Code (“Code”) to add section 414A.[6] Automatic enrollment is a common method by which employers may automatically deduct from an employee’s wages elective deferrals in order to allow for easy participation and increase employees’ retirement savings.[7] Under the provisions in section 414A, certain retirement plans are required to automatically enroll employees.[8] Participants in plans subject to the automatic enrollment requirement will now have to expressly opt out of participating rather than opting in.

Following the enactment of SECURE 2.0, a cash or deferred arrangement (“CODA”) will be treated as qualified CODAs, as defined by 401(k), or annuity contracts, as defined in 403(b), only if they meet the automatic enrollment requirements.[9] As such, SECURE 2.0 requires newly established 401(k) and 403(b) plans which do not meet an exception to include an automatic enrollment feature – an eligible automatic contribution arrangement (“EACA”).[10]

The Code defines an EACA as an employer retirement plan which allows a participant to elect for their employer to make contributions either directly to the plan or to the participant in cash equivalent to a uniform percentage of the employee’s compensation until the employee explicitly chooses otherwise.[11] EACAs must comply with the notice requirements prior to the start of the plan year in order to allow for the employee to opt out or elect to have the contributions made at a percentage other than the uniform percentage under the plan.[12] Pursuant to this requirement, the majority of employers who established either a 401(k) plan or a 403(b) plan on December 29, 2022, or later must include in their 2025 plans an EACA.[13]

In addition to the general requirements for EACAs, plans subject to SECURE 2.0 will be required to comply with certain additional requirements in order to properly be considered an EACA.[14] These requirements include the ability for employees to make permissible withdrawals,[15] the uniform percentage contributed is within a certain range,[16] and the amounts invested are done according to regulation.[17]

A. Permissible Withdrawals.

In order for an EACA to satisfy the permissible withdrawal requirement, the plan must allow for employees to make such withdrawals as defined by section 414(w)(2) of the Code.[18] The Code defines permissible withdrawals as any withdrawal from an EACA that is made as a result of an employee’s election to do so and such a withdrawal consists of funds that the employee elected to contribute to the plan equivalent to the plan’s uniform percentage.[19] Further, the employee must elect to make such a withdrawal no later than 90 days after the first automatic contribution made under the arrangement.[20] This date is recognized to be the date that the automatic contribution would have been included in the employee’s gross income otherwise.[21]  The amount that may be withdrawn is limited to the automatic contributions made under the arrangement.[22] If these requirements are satisfied, the employee can take out their initial automatic contributions without being penalized.

B. Uniform Percentage Contribution.

Under the SECURE 2.0 automatic enrollment requirements, plans must specify the percentage of an employee’s income to be deducted and automatically contributed to the retirement plan.[23] To comply with the uniform percentage contribution requirement of SECURE 2.0, the initial contribution percentage must be between three percent (3%) and ten percent (10%) for the first year in order for to have an EACA.[24] In order to not be subject to compliance with this requirement, the participant must either opt out or explicitly elect to make contributions at a different rate.[25] Further, the uniform contribution percentage must increase by one percent (1%) each plan year until it reaches ten percent (10%), but may not continue in such a manner once it reaches fifteen percent (15%).[26] This rate increase will not be required if the plan’s contribution percentage started at ten percent (10%) or the participant explicitly opts out of such an increase.[27] If any EACA is for a plan year which ended before January 1, 2025, the fifteen percent (15%) requirement will be replaced by a ten percent (10%) contribution percentage requirement.[28]

C. Investments.

Plans subject to SECURE 2.0 must ensure that the amounts which are automatically contributed are done so in accordance with the EACA, are invested properly, and are in compliance with 29 C.F.R. § 2550.40c-5, which is the default requirement that applies where the participant does not elect for the contribution to be invested in an alternative manner.[29] In the event that no election is made, the contributions that are automatically made under the plan will be considered to meet the investment requirements.[30]

Exceptions to SECURE 2.0.

There are exceptions to the automatic enrollment requirements under SECURE 2.0 for retirement plans established prior to the enactment of the statute, plans of small businesses, plans of new businesses, church plans, and governmental plans.[31] Section 414A of the Code specifically provides that the automatic enrollment requirements under SECURE 2.0 will not be applied to any simple plans;[32] any qualified CODAs or annuity contracts purchased under a plan established prior to December 29, 2022;[33] any governmental or church plans;[34] any qualified CODA or annuity contracts purchased under a plan maintained by an employer who has existed for less than three years;[35] or any qualified CODA or annuity contract purchased under a plan maintained by an employer with ten or less employees.[36]

Under this exception, a simple plan will not be subject to the automatic enrollment requirements under Section 414A(b) in order for the arrangement to be treated as a qualified CODA or an annuity contract.[37] To qualify as a simple plan, the plan must meet the contribution, exclusive plan, and vesting requirements specified in the section.[38] A simple plan subject to this exception must comply with the requirements under section 401(k)(11) of the Code.[39]

This exception provides for plans established prior to December 29, 2022, to receive “grandfather” status and therefore not be subject to the automatic enrollment requirements.[40] However, where a plan falls under an exception to the automatic enrollment requirements solely due to its date of establishment, this exception will not apply where an employer adopts such a plan after December 29, 2022, if it is maintained by multiple employers.[41] In the event of adoption of a multiple employer plan (“MEP”) after the enactment of SECURE 2.0, the plan will be subject to the automatic enrollment requirements of section 414A(a).[42]

Included in the exceptions to the automatic enrollment requirement, SECURE 2.0 provides for the exception of any church or governmental plans. A church plan is defined by the Code as a retirement plan that is established and maintained for employees of a church or a group of churches that is tax-exempt.[43] A plan will not be considered a church plan where it is established and maintained for the benefit of employees who are otherwise employed by unrelated businesses or where less than substantially all of the employees do not meet the employee requirements provided in section 414(e).[44] A governmental plan is defined by the Code as any plan which is established and maintained by the government or any agency of the United States for its employees.[45] Where the plan meets the requirements to constitute a church plan or governmental plan, it will not be subject to the automatic enrollment requirements of SECURE 2.0.[46]

The final subset of plans subject to exception from the automatic enrollment requirements of SECURE 2.0 consists of new and small businesses.[47] Pursuant to this exception, any qualified CODA or annuity contract under a plan that has been in existence for under three years will not be subject to the automatic enrollment requirements.[48] Further, any qualified CODA or annuity contract under a plan that is maintained by an employer who has ten or fewer employees.[49] As with the simple plan exception, there is a caveat to the new and small business exception. Where the plan is maintained by multiple employers, the small business exception requirements will be applied independently from the new business exception requirements to each employer.[50] In the event that one employer is subject to the automatic enrollment requirements, they will be considered to maintain a separate plan in regard to this small and new business exception.[51]

Conclusion.

Beginning on January 1, 2025, any plans that are not subject to one of the exceptions under SECURE 2.0 will be required to comply with the additional requirements for automatic contribution to employer retirement plans.[52] Any employer that maintains a retirement plan that is subject to this statute must comply with these requirements going forward in order to avoid costly penalties.[53] As such, it is important for employers to understand what action is necessary under these newly enacted requirements. Given the overall simplicity of the statute when broken down, compliance should come easily and

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[1] Christopher Sonzogni, SECURE Act: What It Means, How It Works, and Rationale, Investopedia (Feb. 1, 2025), https://www.investopedia.com/secure-act-4688468#:~:text=The%20SECURE%20Act%20was%20designed,annuities%20through%20xed%20retirement%20plans..

[2] Sonzogni, supra note 1.

[3] Sonzogni, supra note 1 (“A 2018 study by Northwestern Mutual found that one in five Americans have no retirement savings at all, while one in three of those closest to retirement age has less than $25,000 saved.”).

[4] See generally SECURE 2.0 Act of 2022 (2022).

[5] U.S. S. Comm. on Fin., https://www.finance.senate.gov/download/retirement-section-by-section-;Sonzogni, supra note 1.

[6] SECURE 2.0 Act of 2022 § 101 (2022); see also Tom Morgan, I.R.S. Notice 2024-2, https://www.irs.gov/pub/irs-drop/n-24-02.pdf.

[7] Eric Droblyen, SECURE 2.0’s Automatic Enrollment Mandate for 401(k)(s) – What Employers Need to Know, Employee Fiduciary (Mar. 26, 2024), https://www.employeefiduciary.com/blog/secure-2.0-automatic-enrollment.

[8] See generally 26 U.S.C. § 414A; see also Automatic Enrollment Requirements Under Section 414A, 90 Fed. Reg. 3092, 3092 (proposed Jan. 10, 2025).

[9] I.R.C. § 414A(a).

[10] I.R.C. § 414A(b)(1); Rachel Fetters, Mandatory Automatic Enrollment Under SECURE 2.0, Ascensus (Oct. 17, 2024), https://thelink.ascensus.com/articles/2024/10/16/mandatory-automatic-enrollment-under-secure-20.

[11] I.R.C. § 414(w)(3).

[12] I.R.C. § 414(w)(4).

[13] Fetters, supra note 5.

[14] I.R.C. § 414A(b)(1).

[15] I.R.C. § 414A(b)(2).

[16] I.R.C. § 414A(b)(3).

[17] I.R.C. § 414A(b)(4).

[18] I.R.C. § 414A(b)(2).

[19] I.R.C. § 414(w)(2)(A).

[20] I.R.C. § 414(w)(2)(B).

[21] Automatic Contribution Arrangements, 74 Fed. Reg. 8200, 8205 (Feb. 24, 2009).

[22] I.R.C. § 414(w)(2)(C).

[23] Droblyen, supra note 8.

[24] I.R.C. § 414A(b)(3)(A)(i).

[25] I.R.C. § 414A(b)(3)(A)(i).

[26] I.R.C. § 414A(b)(3)(A)(ii); U.S. S. Comm. on Fin., supra note 5.

[27] I.R.C. § 414A(b)(3)(A)(ii).

[28] I.R.C. § 414A(b)(3)(B).

[29] I.R.C. § 414A(b)(4).

[30] Id.

[31] U.S. S. Comm. on Fin., supra note 5.

[32] I.R.C. § 414A(c)(1).

[33] I.R.C. § 414A(c)(2)(A)(i)-(ii).

[34] I.R.C. § 414A(c)(3).

[35] I.R.C. § 414A(c)(4)(A).

[36] I.R.C. § 414A(c)(4)(B).

[37] I.R.C. § 414A(c)(1); I.R.C. § 414A(a).

[38] I.R.C. § 401(k)(11)(A).

[39] I.R.C. § 414A(c)(1).

[40] I.R.C. § 414A(c)(2)(A).

[41] I.R.C. § 414A(c)(2)(B).

[42] Id.

[43] I.R.C. § 414(e)(1).

[44] I.R.C. § 414(e)(2).

[45] I.R.C. § 414(d).

[46] I.R.C. § 414A(c)(3).

[47] I.R.C. § 414A(c)(4).

[48] I.R.C. § 414A(c)(4)(A).

[49] I.R.C. § 414A(c)(4)(B).

[50] I.R.C. § 414A(c)(4)(C).

[51] Id.

[52] I.R.C. § 414A(b).

[53] Droblyen, supra note 7.

Photo Credit: Puppet Nerd, How Much Does A Puppet Cost?, (last updated December 6, 2021), https://puppetnerd.com/how-much-does-a-puppet-cost/.

Authored by: Bailey L. Fisher

From class actions to multidistrict litigation (“MDL”), the world of complex litigation in the United States is constantly evolving.[1] The second decade of the 21st century brought many things to the United States– one being third-party lenders.[2] Third-party lenders are entities that finance litigation, often providing funds to law firms or directly to plaintiffs.[3] Naturally, third-party financing in complex cases comes with skepticism from individuals around the legal community.[4] What are the consequences of allowing third-party lenders to fund complex cases, and what can we expect in the future?

Third-party lenders had earlier success in other areas, like Australia and the United Kingdom.[5] With the rise of complex litigation in the United States came opportunities for third-party lenders.[6] The success of third-party litigation funding can largely be attributed to the rise in efforts to solve inequities commonly observed during litigation when companies are able to drown their civil opponents in a sea of costly discovery.[7]  In the words of Judge Jeffrey Cole of the United States District Court for the Northern District of Illinois, Eastern Division, “[c]reative businessmen, ever alert to new opportunities for profit, perceived in this economic inequality a chance to make money and devised what has come to be known as third-party litigation funding, where money is advanced to a plaintiff, and the funder takes an agreed upon cut of the winnings.”[8] While third-party financing may seem like a life vest for plaintiffs, it does not come without concerns, questions, and skepticism.[9]

In the murky waters of complex litigation, one thing is clear—third-party lenders are not bound by the Model Rules of Professional Conduct.[10] However, the attorneys who use them are.[11] Comment 14 to Rule 1.8 of the Model Rules of Professional Conduct states, “[b]ecause third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer’s independent professional judgment and there is informed consent from the client.”[12] Attorneys must act in the best interests of their clients when using third-party financing in order to avoid violating their duties to the Bar, especially when it comes to fee sharing and control over the litigation.[13]

In In re Agent Orange Product Liability Litigation, the issue of “whether an undisclosed, consensual fee sharing agreement, which adjusts the distribution of court awarded fees in amounts which represent a multiple of the sums advanced by attorneys to a class for litigation expenses, satisfies the principles governing fee awards and is consistent with the interests of the class” was addressed.[14] In Agent Orange, the fee sharing agreement involved a return on investment.[15] The Second Circuit found that the fee-sharing agreement “places class counsel in a position potentially in conflict with the interests of the class,” as it could lead to an incentive to settle early when the promised return is met, making the settlement offer outweigh the risks of continuing litigation.[16] The court also found that fee sharing agreements must be presented to the court for approval at the time the agreement is formulated.[17] Because third-party litigation funding involves a return on investment, procedures to place clients’ interests first and prevent undue influence should be in place.[18]

In In re Pork Antitrust Litigation, Burford Capital provided financing for MDL.[19] Pursuant to its financing agreement, Burford Capital was granted veto power over settlements.[20] The United States District Court for the Middle District of Minnesota refused to approve conduct that allowed third-party financers to control litigation.[21] Quoting Maslowski v. Prospect Funding Partners LLC, the court stated that courts must “be careful to ensure that litigation financiers do not attempt to control the course of the underlying litigation.”[22]

Questions as to matters of discoverable materials when parties contract with third-party lenders have resulted from the rise in third-party litigation funding.[23] In Miller UK Ltd. v. Caterpillar, Inc., the United States District Court for the Northern District of Illinois, Eastern Division, addressed these issues.[24] Citing multiple articles and commentary on this topic,[25] the opinion in Miller noted the role of the legislature in resolving this societal question, and thus the court refused to comment on the merits or “societal value” of third-party litigation funding.[26] However, the court in Miller did hold that the work product doctrine protects work product in cases involving third-party funding, as long as precautions are taken to not substantially increase the likelihood of opponents receiving the information.[27]

Some state legislatures have enacted laws combatting or restricting the scope of third-party litigation funding.[28] For example, Indiana enacted House Bill 1160, which limits thirty party lender’s access to data, prevents third-party lenders from influencing decisions in lawsuits, and requires disclosure of the financing agreement.[29] States, such as Louisiana, West Virginia, Montana, and Wisconsin have enacted similar laws.[30] Many other states have discussed passing similar legislation.[31]

Attorneys must be able to adapt to the changing tides of complex litigation, especially in the age of third-party financing agreements. For plaintiffs, third-party litigation funding is an extremely attractive method for financing expensive cases and combatting wealthy entities. For defendants, third-party financing can be an obstacle to overcome. Both sides must be cognizant of the changing landscape of funding, especially considering rules, legislation, and comments to the Model Rules of Professional Conduct. Remaining up to date on these changes will allow plaintiffs to protect themselves from attacks by the defense. Defense attorneys should be prepared with relevant arguments, especially when seeking materials during discovery. To protect themselves from violating ethical rules or laws, plaintiff attorneys should disclose financing agreements to the court, shield the third-party from decision making and planning decisions, and create a method for paying third-party lenders that is in the best interests of their clients. The bottom line is this: do not be a puppet and let the third-party financer pull the strings in litigation.

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[1] See Joseph Ostoyich & Becca Brett, US Class Actions: Where We’ve Been and Where We Might Be Headed: Part 3: What Lies Ahead for Class Actions?, Clifford Chance (March 4, 2025), https://www.cliffordchance.com/insights/resources/blogs/group-litigation-and-class-actions/2025/03/us-class-actions-where-we-have-been-and-where-we-might-be-headed-part-3-what-lies-ahead-for-class-actions.html (“The landscape of class action litigation in the United States has undergone significant changes over the past few decades, from an infrequently used tool to an explosion of class actions so great it required the use of MDLs to manage the burdens on the judiciary to the backlash and tightening of class certification standards.”).

[2] Mark Behrens, Third-Party Litigation Funding: A Call for Disclosure and Other Reforms to Address the Stealthy Financial Product That Is Transforming the Civil Justice System, 34 Cornell J.L. & Pub. Pol’y 1, at 4 (2024) (“Large-scale TPLF began in Australia, made its way to the United Kingdom, and arrived in the United States about a decade ago.”).

[3] What You Need to Know About Third Party Litigation Funding, U.S. Chamber of Commerce Institute for Legal Reform (June 7, 2024), https://instituteforlegalreform.com/what-you-need-to-know-about-third-party-litigation-funding/ (“Litigation Funders: Entities that advance money to plaintiffs or law firms to cover litigation or other costs on a non-recourse basis contingent on the outcome of the case.”).

[4] See id.

[5] Mark Behrens, supra n. 2, at 4.

[6] See Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711, 718 (N.D. Ill. 2014).

[7] Id. (“Where a defendant enjoys substantial economic superiority, it can, if it chooses, embark on a scorched earth policy and overwhelm its opponent.”).

[8] Id.

[9] See id. (“Third party litigation funding is a relatively new phenomenon in the United States. The business model has generated a good deal of commentary about and controversy over its intrinsic value to society (or lack thereof depending on one’s perspective) and the discoverability of the actual funding contract and information turned over to prospective funders by a party’s lawyer during negotiations to secure financing.”).

[10] See Model Rules of Pro. Conduct r. 1.8, cmt. 14 (Am. Bar Ass’n). 

[11] Id.

[12] Id.

[13] See id.; see In re Agent Orange Prod. Liab. Litig., 818 F.2d 216 (2d Cir. 1987); see In re Pork Antitrust Litig., No. CV 18-1776 (JRT/JFD), 2024 WL 2819438 (D. Minn. June 3, 2024).

[14] Agent Orange, 818 F.2d at 221-22.

[15] Id. at 223-24.

[16] Id. at 224.

[17] Id. at 226.

[18] See id.

[19] Pork Antitrust, at *1.

[20] Id.

[21] Id. at *4.

[22] Id.; see Maslowski v. Prospect Funding Partners LLC, 944 N.W.2d 235, 241 (Minn. 2020).

[23] See Miller,17 F. Supp. 3d at 711.

[24] Id.

[25] Id. at 718 n.1.

[26] Id. at 742.

[27] Id. at 735-37 (first citing Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1428 (3rd Cir. 1991); and then quoting Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1025 (7th Cir. 2012)).

[28] New Legislation in Indiana, Louisiana, and West Virginia Addresses Secretive Third Party Litigation Funding, U.S. Chamber of Commerce Institute for Legal Reform (July 25, 2024), https://instituteforlegalreform.com/blog/new-legislation-in-indiana-louisiana-and-west-virginia-addresses-secretive-third-party-litigation-funding/.

[29] Id.

[30] Id.

[31] More States Pushing Back on Third-Party Litigation Funding, Claims and Litigation Management Alliance (April 23, 2024), https://www.theclm.org/Magazine/articles/more-states-moving-to-regulate-third-party-litigation-funding-of-plaintiffs-lawsuits/2923#:~:text=Considering%20the%20mixed%20results%20in,but%20none%20of%20those%20passed.

Photo Credit: Paige Pfleger, The Supreme Court Will Decide if Domestic Abuse Orders Can Bar People From Having Guns. Lives Could Be at Stake., ProPublica (Nov. 3, 2023, 6:00 AM), https://www.propublica.org/article/us-vs-rahimi-gun-rights-domestic-violence-converge-supreme-court-case

Authored by: Anna L. Dozier

United States v. Rahimi is a significant Supreme Court case decided 8-1 regarding the rights and protections of the Second Amendment concerning domestic violence.[1] The Second Amendment provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[2] The question raised in Rahimi is whether a federal statute prohibiting an individual at the mercy of a restraining order due to domestic violence from being in possession of a firearm is consistent with the Second Amendment.[3] 18 U.S.C. § 922 (g)(8) prevents any person subject to a domestic violence restraining order from possessing a firearm, punishable by up to 15 years in prison, if three requirements are met: (1) before the order is entered, the defendant must receive actual notice and must have an opportunity to contest or be heard, (2) the order must include a prohibition of the defendant from “harassing, stalking, or threatening an intimate partner . . . or child of such intimate partner” or acting in such a way to put either of them in “reasonable fear of bodily injury,” and (3) the order finds that the defendant poses a “credible threat to the physical safety of such intimate partner or child” or “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force . . . that would reasonably be expected to cause bodily injury.”[4]

At the center of this case is Zackey Rahimi, charged with violating 18 U.S.C. § 922. Rahimi challenged the prima facie constitutionality of this statute, arguing that it violated the Second Amendment on its face.[5] In 2019, Rahimi began arguing with his girlfriend, the mother of his child, in a park where he dragged her to his car and shoved her in, causing an injury to her head while an onlooker watched.[6] Upon noticing the individual, Rahimi reached to pull out his gun from the car, giving his girlfriend an opportunity to run; however, he then fired his gun, unclear if it was aimed either towards her or the onlooker.[7] His girlfriend then sought a restraining order even after Rahimi threatened to shoot her if she reported the incident.[8] After Rahimi declined to contest, a restraining order was placed on him, finding that his violence was “likely to occur again” and he was a “credible threat” to the “physical safety” of his girlfriend, an intimate partner.[9] This triggered the suspension of his gun license for two years, the duration of the restraining order.[10] A few months later, Rahimi approached his girlfriend’s house and tried to contact her through social media multiple times in violation of the restraining order.[11] A few months after that, he threatened a different woman with a gun.[12] While being arrested for this assault, the police found he was involved in several more shootings in Texas, including ones from a drug deal and road rage.[13] While conducting a lawful search of Rahimi’s house, the police found weapons, ammunition, and a copy of the restraining order.[14]

Rahimi was then charged with unlawful firearm possession under the statute, and the district court subsequently denied Rahimi’s motion to dismiss the indictment on his argument that the statute violated the Second Amendment.[15] Consequently, he plead guilty while appealing with the same facial challenge.[16] After his appeal was denied, Rahimi petitioned for a rehearing en banc.[17] While awaiting a decision on his appeal, the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen,[18] where the Court ruled that federal restrictions on firearms must be “consistent with the Nation’s historical tradition of firearm regulation.”[19] As a result, Rahimi was granted a new panel to hear the arguments, and the court reversed its decision, finding that 18 U.S.C. § 922 (g)(8) “does not fit within our tradition of firearm regulation.”[20] Subsequently, the Supreme Court granted certiorari.[21]

Writing for the majority opinion, Chief Justice John Roberts upheld 18 U.S.C. § 922 (g)(8), concluding that it does not, on its face, violate the Second Amendment, noting that our Nation’s history is not unfamiliar with restricting firearm use for violent individuals.[22] The right to keep and bear arms under the Second Amendment is a fundamental right that ensures Americans’ means of self-defense, however, this right is not without limits.[23] The most recent test for the constitutionality of Second Amendment restrictions is found in Bruen, where the Supreme Court instructed lower courts to base their decisions on the “historical tradition of firearm regulation.”[24] Unfortunately, lower courts have interpreted this to exclude the evolution of legislation that restricts only the use of “muskets and sabers,” a suggestion that the Court denies in Rahimi.[25] The Supreme Court in District of Columbia v. Heller[26] clarified that the Second Amendment extends beyond just the weapons that existed at our Nation’s founding, and it permits updated legislation to apply protections of our modern weapons that were not in existence at our Nation’s founding.[27]

Clarifying Bruen, the Supreme Court reiterates that in considering whether a regulation aligns with our nation’s history, the courts must decide if the regulation is “relevantly similar,”[28] not a “historical twin,”[29] to the traditional permits of our laws.[30] In doing so, the courts should faithfully discern the balance between our nation’s founding principles and the modern circumstances we currently face.[31] In a facial challenge like Rahimi’s, a defendant must “establish that no set of circumstances exists under which the Act would be valid,”[32] meaning the Government must only demonstrate that the Act is constitutional in any set of circumstances.[33] The statute is constitutional as applied to the circumstances in Rahimi.[34]

The majority opinion examines the history of early English law and American common law regarding restrictions on arms for violent individuals to determine whether 18 U.S.C. § 922 (g)(8) is relevantly similar to founding traditions and, therefore, constitutional on its face.[35] The Court uses two examples from English law that were incorporated into American common law: surety laws and going armed laws.[36] Surety laws were preventative measures allowing a judge to order an individual, including a spouse, to post a bond if the individual was suspected of committing future violence and misusing firearms.[37] While surety laws aimed to protect against future misconduct by violent individuals, going armed laws worked to punish those individuals for affrays.[38] The prohibition on affrays could require those who armed themselves to instill terror in others to forfeit their arms.[39] Drawing from these historical traditions, the Supreme Court in Rahimi finds that it is “common sense” that an individual may be disarmed if they pose a “clear threat of physical violence to another.”[40] 18 U.S.C. § 922 (g)(8) is not identical, but still relevantly similar to the surety and going armed laws, as all work to restrict firearms in the context of threats of physical violence.[41] Thus, this federal statute does not violate the Second Amendment when a court temporarily disarms an individual who poses a credible threat of physical violence.[42]

Justice Clarence Thomas respectfully dissents, arguing that 18 U.S.C. § 922 (g)(8) targets the core of the Second Amendment, and the majority failed to identify any historical traditions or laws that support or are relevantly similar to the statute.[43] He critiques the majority for upholding this statute, as it automatically strips individuals of a right without proper due process.[44] Justice Thomas asserts that the Government cannot remove the right to keep and bear arms from those subject to a restraining order if the individual has never been convicted of a crime.[45] He does not dispute that Bruen requires firearm regulations to align with our Nation’s traditions.[46] Still, he finds the majority’s reliance on the early traditions of surety laws and going armed laws undermines the purpose of the Second Amendment, as those traditions feed the dangerous idea that Congress can disarm those deemed dangerous or unfit.[47] He warns of a future where the Rahimi decision will “risk the Second Amendment rights of many more.”[48]

---

[1] 602 U.S. 680 (2024).

[2] U.S. Const. amend II.

[3] Rahimi, 602 U.S. at 684-86.

[4] 18 U.S.C. § 922 (g)(8)(A-C).

[5] Rahimi, 602 U.S. at 689.

[6] Id. at 686.

[7] Id.

[8] Id.

[9] Id. at 686-87.

[10] Id. at 687.

[11] Rahimi, 602 U.S. at 687.

[12] Id.

[13] Id.

[14] Id. at 688.

[15] Id. at 68-89.

[16] Id. at 689.

[17] Rahimi, 602 U.S. at 689.

[18] 597 U.S. 1 (2022).

[19] Rahimi, 602 U.S. at 689; Bruen, 597 U.S. at 24.

[20] Rahimi, 602 U.S. at 689.

[21] Id.

[22] Id.

[23] District of Columbia v. Heller, 554 U.S. 570, 626 (2008).

[24] Bruen, 597 U.S. at 17.

[25] Rahimi, 602 U.S. at 691-92.

[26] 554 U.S. at 570.

[27] Rahimi, 602 U.S. at 691-62.

[28] Bruen, 597 U.S. at 29.

[29] Id. at 30.

[30] Rahimi, 602 U.S. at 692 (emphasis added).

[31] Bruen, 597 U.S. at 29; Rahimi, 602 U.S. at 692.

[32] United States v. Salerno, 481 U.S. 739, 745 (1987).

[33] Rahimi, 602 U.S. at 693.

[34] Id.

[35] Id. at 693-94.

[36] Id. at 693, 697.

[37] Id. at 695-97.

[38] Id. at 697.

[39] Rahimi, 602 U.S. at 697.

[40] Id. at 698.

[41] Id. at 699.

[42] Id.

[43] Id. at 751.

[44] Id. at 748.

[45] Rahimi, 602 U.S. at 777.

[46] Id. at 750.

[47] Id. at 774.

[48] Id. at 777.

Photo Credit: The Federalist Society, Muldrow v. St. Louis [SCOTUSbrief], YouTube (July 29, 2024), https://www.youtube.com/watch?v=oM4XOc7tLm0

Authored by: Sydney F. Jeffcoat

Under Title VII, it is illegal for any employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion sex, or national origin.”[1] Thus, to comply, an employer cannot discriminate against an employee or potential employee based on one of those characteristics. Although this may seem like a plain and simple law to follow, courts across the country have struggled to define when an employee or potential employee is harmed because of one of these characteristics.[2] As a result, the Court sought to clarify the appropriate standard in Muldrow v. City of St. Louis.[3]

In Muldrow, Sergeant Jatonya Clayborn Muldrow, alleged that her employer, the St. Louis Police Department, discriminated against her based on her sex.[4] For almost ten years, Sergeant Muldrow served as an officer in the Intelligence Division of the St. Louis Police Department.[5] Muldrow’s commander left the Intelligence Division in 2017 and informed her successor that Muldrow was a great employee.[6] Disregarding the previous commander’s comments, the new commander transferred Muldrow out of the Intelligence Division and replaced her with a male officer.[7] Muldrow was then assigned to a position in the St. Louis Police Department’s Fifth District.[8]

As a result, many parts of Muldrow’s job changed. First, her job duties changed, as she was no longer able to work on public corruption and human trafficking cases and instead supervised the everyday activities of the neighborhood patrol officers.[9] Second, she now spent most of her time performing administrative tasks.[10] Third, she was stripped of her FBI credentials and her unmarked take-home vehicle.[11] Lastly, she began to work a sporadic schedule as compared to a traditional Monday to Friday schedule.[12] The only consistency that remained after the reassignment was her compensation and rank.[13] As a result, Muldrow sued the St. Louis Police Department alleging that she was transferred due to her sex.[14] The district court granted summary judgment and the Eight Circuit Court of Appeals affirmed because Muldrow could not show that her reassignment resulted in a “materially significant disadvantage.”[15] The United States Supreme Court granted certiorari.[16]

In Muldrow, the Court looked at the text of the statute to determine the appropriate standard for a Title VII claim.[17] In its analysis, the Court stated that the high bar of demonstrating that a change in employment must result in a “materially significant disadvantage” is nowhere to be found in the legislative text.[18] In an effort to make the standard as simple as the legislative text, the Court stated that a plaintiff must only show that “some harm” resulted from a change in employment.[19] The Court reasoned that the new standard will force the beholder of the claim to examine all kinds of disadvantages, not just materially significant disadvantages.[2o] However, this standard seems to make the test just as subjective as it was before. The only guidance the Court gave about how to apply this new standard is that the change must be “disadvantageous.”[21] While the bar is clearly much lower, defining what “some harm” is will most likely be an obstacle to the lower courts.[22] Is this standard too simple?[23] Will it lead to a flood of litigation in the courts?[24] Will this new standard even change the outcomes of Title VII claims?[25] These are the types of questions that the concurring opinions sought to address, but they will likely have to be addressed again in the future.

It will certainly be interesting to see if this new standard results in more confusion amongst the courts because of its subjective nature. There is no doubt that this new standard will make it much easier for plaintiffs to bring a claim under Title VII because of the low bar that must be met. Thus, employers should carefully evaluate any changes to an employee’s job to make sure it does not relate to an employee’s protected status, as even minor changes can now result in a lawsuit due to the low bar.[26] Furthermore, many predict that this decision will have a great impact on Diversity, Equity, and Inclusion hiring programs.[27] In the end, it will depend on how the beholder of the Title VII claim defines “harm” to determine the outcome.

---

[1] 42 U.S.C. § 2000e-2(a)(1).

[2] See, e.g., Caraballo-Caraballo v. Correctional Admin., 892 F.3d 53, 61 (1st Cir. 2018) (stating that an employee must show that the action left them with “significantly different responsibilities”); Webb-Edwards v. Orange Cty. Sherriff’s Office, 525 F.3d 1013, 1033 (11th Cir. 2008) (stating that the employee must show that the action resulted in a “serious and material change”); Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (stating that an employee must show that the action resulted in a “materially significant disadvantage”); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004) (stating that the employee must show that the action had a “significant detrimental effect”); O’Neal v. Chicago, 392 F.3d 909, 911 (7th Cir. 2004) (stating that an employee must show they suffered a “materially adverse employment action”); Sanchez v. Denver Public Schools, 164 F.3d 527, 532 (10th Cir. 1998) (stating than an employee must show more than a “mere inconvenience or alteration of job responsibilities”).

[3] 601 U.S. 346 (2024).

[4] Id. at 350.

[5] Id.

[6] Id. at 350-51 (“In 2017, the outgoing commander of the Intelligence Division told her newly appointed successor that Muldrow was a ‘workhorse’–still more, that ‘if there was one sergeant he could count on in the Division’, it was Muldrow.”) (quoting Muldrow v. City of St. Louis, No. 4:18-CV-02150-AGF, 2020 WL 5505113, *1 (E.D. Mo. Sept. 11, 2020)).

[7] Muldrow, 601 U.S. at 351.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Muldrow, 601 U.S. at 351.

[14] Id.

[15] Id. at 352.

[16] Id. at 353.

[17] Id. at 353-54.

[18] Id. at 355 (“There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones.”).

[19] Muldrow, 601 U.S. at 354 (“To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.”).

[20] Id. at 355-56 (stating that appellate decisions were reaching different conclusions because “the answers [lied] in the eye of the beholder,” and as a result, workers were required to show a harm “that the statutory text [did] not require”).

[21] Id. at 354.

[22] See id. at 362 (Alito, J., concurring) (“I have no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges.”).

[23] But see id. at 364-65 (Kavanaugh, J., concurring) (arguing that the new standard is not simple enough because the text of the statute does not require a showing of harm once it is proven that an employer’s action is discriminatory).

[24] Id. at 358 (rejecting the defendant’s public policy objection that the new standard will cause “the floodgates [to] open in the way feared”); see also Stephanie L. Adler-Paindiris et. Al., U.S. Supreme Court: Alleging Discriminatory Transfer is Sufficient Harm to Bring Title VII Claim, Jackson Lewis (Apr. 25, 2024), https://www.jacksonlewis.com/insights/us-supreme-court-alleging-discriminatory-transfer-sufficient-harm-bring-title-vii-claim.

[25] Muldrow, 601 U.S. at 363 (Alito, J., concurring) (arguing that this decision will have no effect on Title VII claims because judges will continue to do what they have previously done by using different wording).

[26] Christopher Wilkinson and Jeremy Wright, Muldrow Sets a New Standard for Workplace Discrimination, Perkins Cole (Apr. 24, 2024), https://perkinscoie.com/insights/update/muldrow-sets-new-standard-workplace-discrimination.

[27] See Stephanie L. Adler-Paindiris et. al., U.S. Supreme Court: Alleging Discriminatory Transfer is Sufficient Harm to Bring Title VII Claim, Jackson Lewis (Apr. 25, 2024), https://www.jacksonlewis.com/insights/us-supreme-court-alleging-discriminatory-transfer-sufficient-harm-bring-title-vii-claim; Christopher Wilkinson and Jeremy Wright, Muldrow Sets a New Standard for Workplace Discrimination, Perkins Cole (Apr. 24, 2024), https://perkinscoie.com/insights/update/muldrow-sets-new-standard-workplace-discrimination.

Photo Credit: Fiveable, Courts and Society Review: 6.1 Right to Counsel, (last updated Aug. 20, 2024), https://fiveable.me/courts-society/unit-6/counsel/study-guide/4iKskTZZehZeIIjq.

Authored by Kaitlyn Fowler

The Sixth Amendment provides numerous trial-related protections and hosts one of the most crucial rights for those accused of a crime—the right to “have the Assistance of Counsel for his defence.”[1] This right is guaranteed to anyone being charged with a crime for which “a term of imprisonment is imposed,” regardless of their ability to pay for counsel.[2] If the defendant is unable to pay for counsel, an attorney will be appointed for them.[3] This right “attaches at the initiation of adversarial judicial proceedings, ‘whether by way of formal charge, preliminary hearing, indictment, information or arraignment.’”[4] The caveat for indigent defendants is that they cannot choose their counsel, while those who opt to get a private attorney clearly can.[5]  The constitutionality of this discrepancy has been upheld by the United States Supreme Court due to an indigent defendant not being permitted to “insist on representation by an attorney he cannot afford.”[6]

A further discrepancy regarding the differences between an indigent defendant and one who can afford legal counsel has never directly been addressed by the Supreme Court—whether an indigent defendant has the right to continued representation by counsel who has been appointed to them throughout the course of all proceedings related to the case.[7] This question was recently raised by a man named William Davis (“Davis”), who believes his Sixth Amendment right to counsel was violated when his appointed counsel changed.[8]

Davis was arrested and charged with multiple vehicular offenses on April 20, 2017.[9] Because he was found to be indigent, Davis was appointed Garen Gervey (“Gervey”) as his public defender.[10] Subsequently, “Davis, through counsel, moved for a continuance” due to various scheduling conflicts, which the Court denied.[11] Because Davis’ current attorney would only be able to continue to represent him if granted a continuance, Davis attempted his motion for a second time, asserting that he had a right to continued representation by Gervey.[12] The Court once again denied the motion on the grounds that “‘substitution of one public defender with another does not violate the Sixth Amendment… absent evidence of prejudice.”[13] The Court determined that Davis would not face any prejudice, as the nature of the case was simple enough that a reasonably competent attorney would easily be able to prepare for trial.[14] Davis was subsequently convicted, and the matter was then brought before the Colorado Court of Appeals.[15]

The Court of Appeals sided with Davis and reversed his conviction on the grounds that “indigent defendants have a constitutional right to continued representation by appointed counsel.”[16] The People petitioned the Colorado Supreme Court for review, and it granted certiorari.[17] Ultimately, the Court found a difference between the “right to effective assistance of counsel and the more limited right to choice of counsel.”[18] This limited right to choice of counsel is what ultimately grants the right to continued representation by that specific counselor.[19] The Colorado Supreme Court thus reversed and remanded the decision of the Appellate Court.[20]

A writ of certiorari was then presented to the United States Supreme Court. While awaiting the Court’s decision, several briefs were submitted to the Court, including one from the National Association of Criminal Defense Lawyers (“NACDL”).[21] The NACDL contended that the right to continuous representation should be viewed as even more important in regard to indigent defendants, as they are already “at the mercy of overworked public defenders and court appointed attorneys.”[22] Arguably, these restraints already make it hard for public defenders to advocate zealously for their indigent clients, so the NACDL advocated that absent a clear right to continued representation by appointed counsel, that goal is nearly impossible.[23]

On the contrary, the state of Colorado’s position is that the Court’s prior decisions have already decided this issue—the Sixth Amendment right to counsel does NOT equate to continuity of such counsel.[24] The crux of Colorado’s argument is that the continuity right is contingent on the right to choose one’s counsel.[25] Because indigent defendants do not choose their counsel, rather, counsel is chosen for them, the added right of continuity cannot be said to attach.[26]

Ultimately, the Court denied the petition for certiorari on October 15, 2024. It can be assumed that this is the Court’s way of implicitly siding with Colorado, due to Colorado’s insistence that there was no need to take the case because there is already an answer. All one can do at this point is wait and see if this issue continues to be litigated, as eventually the Court may find a case compelling enough to warrant review. Until then, lower courts will likely continue to interpret and apply contradictory precedents, leading to varied approaches across jurisdictions.

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[1] U.S. Const. amend. VI.

[2] U.S. v. Bryant, 579 U.S. 140, 143 (2016) (citation omitted).

[3] Reynolds v. State, 114 So. 3d 61, 88 (Ala. Crim. App. 2010) (“An indigent defendant who cannot afford to retain an attorney has an absolute right to have counsel appointed by the Court.”) (quotation omitted) (citation omitted).

[4] Joseph P. Van Heest, Rights of Indigent Defendants After Alabama v. Shelton, 63 Ala. Law. 370, 370 (2002) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).

[5] See Caplin & Drysdale, Chartered v. U.S., 491 U.S. 617, 624 (1989) (“The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.”).

[6] Wheat v. U.S., 486 U.S. 153, 159 (1988).

[7] Docket No. 23-1096, Pet. at i.

[8] See id.

[9] People v. Davis, Case No. 21SC388, ¶ 3 (Colo. 2023).

[10] Id.

[11] Id. ¶ 4.

[12] Id. ¶ 5.

[13] Id. ¶ 6 (quoting People v. Coria, 937 P.2d 386, 389 (Colo. 1997)).

[14] Id.

[15] Davis, Case No. 21SC388, ¶¶ 8-9.

[16] Id. ¶ 9.

[17] Id. ¶ 10.

[18] Id. ¶ 11.

[19] Id.

[20] Id. ¶ 25.

[21] See Brief of Nat’l Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner, Davis v. Colorado, No. 23-1096 (May 23, 2024).

[22] Id. at 6.

[23] Id. at 7.

[24] See Brief of Colorado in Opposition, Davis v. Colorado, No. 23-1096 (July 8, 2024).

[25] Id. at 7.

[26] Id.

Samantha Stutsman, See the Case of Monsters: The Lyle and Erik Menendez Story Side-by-Side with the Real People they Play, People (Sep. 19, 2024), https://www.today.com/popculture/tv/monsters-lyle-erik-menendez-cast-vs-real-people-rcna168424.

Authored by Leslie A. LaTurno

With the development and advancement of technology and media, the tools in which attorneys can use to advocate for their clients have expanded as well. But how can criminal defense attorneys use technology and media to their advantage?

Lyle and Erik Menendez were convicted of first-degree murder in the 1989 killings of their parents, Kitty and Jose Menendez.[1] The brothers––who were 18 and 21 at the time of the murders––were sentenced to life in prison without the possibility of parole.[2] Both of the brothers’ first trials ended in a mistrial, with their second trials having procedural bars to the kinds of evidence allowed to be permitted.[3] Specifically, their attorneys could not put on evidence that went to the alleged sexual, physical, and mental abuse the brothers faced by their parents.[4] Because the self-defense theory presented by the defense attorneys hinged on this testimony and evidence, the lack thereof resulted in guilty verdicts by the juries.[5] This chain of events is highlighted in Netflix’s most recent viral true crime documentary, Monsters. While this case garnered media attention at its conception, society’s stance on mental health and rehabilitation has drastically changed since the 90s.[6]

The “1960s to the early 2000s” highlighted a time period in which crime riddled California took a “tough on crime” stance –making an example of high profile defendants and prosecuting to the highest extent of the law.[7] However, as times have changed, the state has put in place new statutes in an effort to alleviate the harsh sentencings imposed during that period.[8] These post-conviction relief routes are designed to allow the courts to have an avenue to correct overly punitive or unjust rulings.[9] While every convict has the federal right to appeal under 28 U.S.C. § 2255, this appeal may only be used once and is time-barred for one year after the prescribed requirements. This is typically “the date on which the judgment of conviction becomes final.”[10] Once a convicted defendant has used this appeal or the time has lapsed, the defendant must look to their state’s post-convicted remedies to see what relief could be afforded.[11]

“In California specifically, post-conviction relief can be afforded at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.”[12]

Further, the state has given District Attorneys immense discretion in recommending any case for re-sentencing to the court.[13] This avenue of relief, coupled with the social outrage from Monsters: The Lyle and Erik Menendez Story, presented the perfect scenario for Lyle and Erik Menendez. Following Monsters: The Lyle and Erik Menendez Story and The Menendez Brothers, millions of viewers took to social media in support of the brothers and expressed discontent that the pair remain incarcerated today.[14] Roughly 114,000 people have signed a petition in support of freeing Lyle and Erik.[15] News outlets from “ABC News to Fox News, . . . have dissected the tragic event and every stage of their lives since.”[16] Through Cal. Penal Code § 1172, and because of the large support in favor of Lyle and Erik, George Gascón, the Los Angeles County District Attorney, recommended that the brothers be re-sentenced.[17] Following this recommendation, a hearing in front of the court will be set, and a judge will “make a ruling based on what is presented.”[18]

This is not the first time that a “true crime” media craze has provided a sort of post-conviction relief to a convicted defendant. In similar fashion, Gypsy Rose Blanchard was convicted of second-degree murder and sentenced to ten years in prison for the 2015 slaying of her mother.[19] Her co-conspirator and boyfriend at the time were sentenced to life in prison without parole.[20] Years later, HBO’s Mommy Dead and Dearest (2017),  Hulu’s The Act (2019), and various related documentaries and docuseries were released detailing the physical and psychological abuse Gypsy Rose faced at the hands of her mother.[21] The public’s reaction to the stories of severe medical abuse leaned towards empathy and support for Gypsy Rose and contention over whether she should be in prison.[22] In 2023, Gypsy was released early after only serving eighty-five percent of her ten-year sentence.[23] The relevant state law required that Gypsy serve a minimum of eighty-five percent of the original sentence to be eligible for parole.[24] While the on-goings of her parole hearing were not public, it is likely that the mass support for her release played a strong factor in the immediate approval of her parole.

Why does all of this matter to attorneys? Attorney’s jobs as advocates do not end at conviction and sentencing.[25] The media can now become a tool for attorneys to rectify convictions and sentencings that do not align with society’s view on certain crimes. How do we use it? First, find the rules in your respective state regarding post-conviction relief.[26] If your state provides a provision that allows for discretion in convictions or sentencings, focus on the requirements of such provision. For example, California, Washington, Oregon, Illinois, and Minnesota have all passed discretionary provisions that allow prosecutors to initiate resentencing.[27] Focus on finding those with the discretion to recommend or initiate review. Next, attract the attention of local or national media. This could include journalists, producers, online campaigns, and all forms of media. Work with the media to tell the story in a way that sheds light to the injustices faced by the defendant(s).[28] “By presenting a story that strongly supports one side of a case (whichever side that might be), the creators are essentially showing the ‘right’ side for their viewers to be on.”[29] If an attorney can successfully accomplish the above, there is hope for post-conviction relief.

---

[1] See Michael Arntfield, Expert insight: The Menendez brothers’ case and the moral paradox of true crime, Western News (Oct. 30, 2024), https://news.westernu.ca/2024/10/menendez-brothers-and-true-crime/.

[2] See Alana Wise, DA recommends resentencing of Menendez brothers for the 1989 slaying of their parents, NPR (Oct. 24, 2024), https://www.npr.org/2024/10/24/nx-s1-5163531/menendez-brothers-murders-resentencing-recommended.

[3] See id.

[4] See Kate Christobek, The Menendez Brothers Could Be Released From Prison. Here’s What to Know., N.Y. Times (Oct. 31, 2024), https://www.nytimes.com/article/menendez-brothers-case.html (“The judge, Stanley M. Weisberg, prohibited their lawyers from using the ‘abuse excuse,’ essentially leaving only two options for jurors: an acquittal or a murder conviction.”).

[5] See id.

[6] See Jessica Walthall, The Evolution of the Mental Health Movement, National Alliance on Mental Health (June 1, 2020), https://www.nami.org/advocate/the-evolution-of-the-mental-health-movement/.

[7] Steven Greenhut, How California Softened Its ‘Tough-On-Crime’ Approach, R Street Institute (July 2017), https://www.rstreet.org/wp-content/uploads/2018/04/102-1.pdf; Kendall Fisher, No Time Like the Present, Except the Past Fifty Years: Why California Should Finally Adopt the Model Penal Code Sentencing Provisions, 49 The U. Of Pac. L. Rev. 661, 669 (2018) (“Although the ‘tough on crime’ era peaked in the 1990s, it remains a popular slogan among politicians seeking to win elections by promising a heavy-handed approach to crime, and capitalizes on public fears by making examples out of recent high-profile crimes.”).

[8] See generally Cal. Penal Code §§ 17(b), 745, 1016.5; S.B. 731, 2022 Gen. Assemb., Reg. Sess. (Ca. 2022); S.B. 483, 2021 Gen. Assemb., Reg. Sess. (Ca. 2021).

[9] Greenhut, supra note 7.

[10] 28 U.S.C. § 2255 (f)(1).

[11] See Carlos M. Vazquez & Stephen I. Vladeck, The Constitutional Right to Collateral Post-Conviction Review, 103 Va. L. Rev. 905, 910-11 (2017) (“States are under no obligation to permit collateral attacks on convictions that have become final, and if they allow such attacks, they are free to limit the circumstance in which claims may be relitigated.”) (citing Foster v. Chatman, 136 S. Ct. 1737, 1759 (2016)).

[12] Cal. Penal Code § 1172.1(a)(1).

[13] See A.B. 2942, 2018 Gen. Assemb., Reg. Sess. (Ca. 2018).

[14] See Jeetendr Sehdev, The Menendez Brothers Mania: America’s Obssession With Bad Boys, Forbes (Oct. 28, 2024), https://www.forbes.com/sites/jeetendrsehdev/2024/10/28/the-menendez-brothers-mania-americas-obsession-with-bad-boys/.

[15] See Menachem Enayatian, Free the Menendez Brothers, Change (last visited Nov. 8, 2024) https://www.change.org/p/jail-for-getting-abused-free-the-menendez-brothers.

[16] Sehdev, supra note 14.

[17] See Cindy VonQuednow & Dalia Faheid, What’s next for the Menendez Brothers as DA recommends their resentencing decades after their parents’ killing, CNN (Oct. 25, 2024), https://www.cnn.com/2024/10/25/us/erik-lyle-menendez-brothers-resentencing-whats-next/index.html.

[18] Id.

[19] See Marlene Lenthang, Gypsy Rose Blanchard released from prison early after serving time for the murder of her abusive mother, NBC News (Dec. 28, 2023) https://www.nbcnews.com/news/us-news/gypsy-rose-blanchard-released-prison-early-serving-time-murder-abusive-rcna131423.

[20] See id.

[21] See Anna Kaplan & Ariana Brockingston, 6 movies, documentaries and shows about Gypsy Rose Blanchard to watch, Today (July 10, 2024), https://www.today.com/popculture/gypsy-rose-blanchard-movies-documentaries-rcna132066. (“Blanchard is thought to be a victim of Munchausen syndrome by proxy, a psychological disorder in which a caretaker purposefully makes someone sick. In 2015, Blanchard’s then-boyfriend, Nicholas Godejohn, stabbed her mother to death while she hid in another room.”).

[22] See The internet’s unfortunate idolization of Gypsy Rose Blanchard, Daily Free Press (Jan. 22, 2024), https://dailyfreepress.com/2024/01/22/the-internets-unfortunate-idolization-of-gypsy-rose-blanchard-editorial/.

[23] Aaron A. Bedoya, Is Gypsy Rose out of Prison? Details to know about release, El Paso Times (Dec. 28, 2023) https://www.elpasotimes.com/story/news/2023/12/28/gypsy-rose-released-details-to-know-about-age-how-long-in-prison/72049377007/.

[24] See Mo. Rev. Stat. § 558.019.3 (2024).

[25] See David M. Siegel, My Reputation or Your Liberty (or Your Life): The Ethical Obligations of Criminal Defense Counsel in Postconviction Proceedings, 49 The U. Of Pac. L. Rev. 661, 669 (2018).

[26] See, e.g., Rule 32, Ala. R. Crim. P.

[27] Where is PIR happening?, For the People (last visited Nov. 8, 2024), https://www.fortheppl.org/faqs#:~:text=Since%202018%2C%20five%20states%20have,Florida%2C%20Massachusetts%2C%20and%20Maryland.

[28] Kathryn A. Doughty, Exploring the existence of a “documentary effect: examination of true crime documentaries on judgments of evidence manipulation and perceptions of police (May 2018) (ASU Electronic Theses and Dissertations) (Conducting a study that poses a correlation between true crime media’s portrayal of the defendant as innocent or acting with a defense and the viewer’s positive perception of the defendant).

[29] Ryan Murphy, Crime Documentaries: Are They Really Helping?, BC Law: Impact (Nov. 3, 2016), https://bclawimpact.org/2016/11/03/crime-documentaries-are-they-really-helping/.

Photo Credit: Dr. Kiran Raman, There’s a new updated COVID-19 vaccine just in time for the respiratory virus season, Arizona Department of Health Services, October 11, 2023, https://directorsblog.health.azdhs.gov/theres-a-new-updated-covid-19-vaccine-just-in-time-for-the-respiratory-virus-season/.

Authored by Bethany M. Logan

Title VII of the Civil Rights Act prohibits workplace discrimination based on religion. Title VII requires employers to reasonably accommodate employee’s religious practices unless doing so results in undue hardship. In recent years, the COVID-19 pandemic sparked a wave of lawsuits involving religious objections to vaccination mandates. But how does the law distinguish between sincerely held religious beliefs and personal preferences masked as faith?

Title VII was amended in 1972 to clarify the definition of religious discrimination under the statute by stating that “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”[1] Title VII makes it unlawful for an employer to discharge or otherwise discriminate against an individual in hiring, firing, compensation, or any aspect of employment based on religion, race, color, sex, or national origin.[2] An employee must first demonstrate that they hold a genuine and sincerely held religious belief, which they have communicated to the employer, and that this belief conflicts with a job requirement.[3] The COVID-19 pandemic led to a surge of lawsuits, as employees who were required by their employers to get vaccinated sought religious exemptions.

As of March 1, 2022, EEOC guidance allows employers to request an explanation from employees who claim a religious objection to the COVID-19 vaccination requirement regarding how their religious beliefs, practices, or observances conflict with this mandate. [4] While religious beliefs are protected under the law, political beliefs are not, nor are general concerns about vaccine safety.[5] Employers are required to evaluate these objections on a case-by-case basis.[6] Additionally, religious accommodations may be revoked if an employee’s beliefs change or if granting such exemptions imposes an undue burden on the employer.[7] The Supreme Court has defined “undue hardship” as the employer bearing “more than a de minimis cost” or as infringing upon the rights of other employees.[8]

The Supreme Court laid out the test for whether a belief is religious in a case interpreting a conscientious objector statute.[9] The relevant objective test examined whether “the claimed belief occup[ies] the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption.”[10] The Court distinguished between individuals whose beliefs were genuinely religious and those whose views were “essentially political, sociological, or philosophical or a merely personal moral code.”[11] While the court should not inquire into the credibility of the beliefs, the court should “decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.”[12] A belief in god is unnecessary; however, beliefs must “certainly occupy in the life of that individual ‘a place parallel to that filled by * * * God’ in traditionally religious persons.”[13]

The plaintiffs in Ringhofer sought religious accommodations for the mandatory vaccination policy instated by the employer, Mayo.[14] Plaintiffs alleged that the vaccination mandate conflicted with their Christian beliefs since “(1) according to Scripture, their body is a temple they must respect and protect, and (2) their anti-abortion beliefs, rooted in religion, prevent using a product produced with or tested with fetal cell lines.”[15] The Eighth Circuit reversed the district court’s dismissal of the employees’ claims and remanded for further proceedings consistent with its opinion, affirming the necessity of accommodating religious beliefs under Title VII.[16] The case has yet to be heard on remand.

In 2017, the Third Circuit focused on defining what constitutes a “sincerely held” religious belief.[17] Fallon’s employer began requiring employees to obtain a flu vaccine or submit an exemption form for a medical or religious exemption.[18] Importantly, Fallon did not claim to belong to any religious organization, but instead, he held a strong personal belief against flu vaccinations.[19] He was consequently suspended and ultimately terminated.[20] The court considered whether Fallon’s beliefs “address[ ] fundamental and ultimate questions having to do with deep and imponderable matters, are comprehensive in nature, and are accompanied by certain formal and external signs.”[21] Fallon’s specific belief against the vaccine mandate was that it would “violate his conscience as to what is right and what is wrong.”[22] The court found that Fallon was concerned about the health effects of the flu vaccine, due to his disbelief of widely accepted science.[23] Therefore, the court concluded that Fallon’s beliefs were not similar to a more traditional faith and not religious for the purposes of Title VII.[24]

Following the decision in Fallon,the Third Circuit has continued to take that same stance. In Brown, the plaintiff complied with the company mandate to receive the flu vaccine; however, after five years she “could no longer go against [her] beliefs.”[25] Her evidence did not include a pastor to validate such beliefs, but instead an “advance vaccine directive” prepared by National Solutions Foundation which registered her opposition to vaccines.[26] Subsequently, Brown was fired for failure to comply with the flu vaccine mandate.[27] The court predominantly followed the Fallon analysis.[28] Despite the plaintiff’s argument that the “vaccine was unnecessary for her because she scrupulously washed her hands” the court found that her concerns about the vaccine were a medical belief, not a religious one.[29]

Earlier this year, the Seventh Circuit chimed in on the issue concerning the COVID-19 vaccine. In Passarella, the plaintiff worked at a hospital in Wisconsin that mandated a COVID-19 vaccination for all employees.[30] Passarella justified her Christian belief that her body “is [the Lord’s] dwelling place” and that “[a]fter prayerful consideration, I don’t feel at peace about receiving the COVID vaccine” and instead “must trust God with my body (His temple) and that he will provide for me and protect me as he has already proven time and time again during my life.”[31] The plaintiff also believed that the vaccine would cause blood clots or heart inflammation.[32] She also took the angle of the vaccine being inconsistent with her broader life pattern of eating organic foods and exercising.[33] The court agreed with Passarella since “[a]n employee may object to an employer’s vaccine mandate on both religious and non-religious grounds.”[34] Her Christian beliefs regarding the sanctity of the human body were sufficient for protection under Title VII.[35] The court also stated in dicta that there are limits to this analysis in which “[r]eligious accommodation requests rooting themselves entirely in safety considerations with no plain and express connection to religion will fall outside of the statute even at the pleading stage.”[36]

In conclusion, there is a strong circuit split on the interpretation of a “sincerely held” religious belief under Title VII. The Third Circuit has consistently ruled that personal or medical objections do not qualify as religious beliefs. In contrast, the Eighth Circuit has been more accommodating, affirming that religious objections tied to personal health practices can be protected. The Seventh Circuit strikes a balance, recognizing claims that combine religious and non-religious elements but limiting those based purely on safety concerns. Until the Supreme Court addresses this split, the question remains: How far should the law go to protect personal convictions in the guise of religion?

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[1]42 U.S.C. § 2000e(j).

[2]42 U.S.C. § 2000e-2(a).

[3]See Fallon v. Mercy Cath. Med. Ctr. of Se. Pennsylvania, 877 F.3d 487, 490 (3d Cir. 2017) (“Under Title VII, in order to establish religious discrimination, the employee must have shown that (1) he held a sincere religious belief that conflicted with a job requirement, (2) he informed his employer of the conflict, and (3) he was disciplined for failing to comply with the conflicting requirement.”); Dockery v. Maryville Acad., 379 F. Supp. 3d 704, 718 n.18 (N.D. Ill. 2019) (“[W]hile the validity of a religious belief cannot be questioned, the threshold question of sincerity . . .  must be resolved in every case.”) (internal quotation marks omitted).

[4]§ 5:146 EEOC guidance on COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws, 1 Employee Medical Leave, Benefits and Disabilities Laws § 5:146.

[5]Id.

[6]Id.

[7]Id.

[8]Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977); see US Airways, Inc. v. Barnett, 535 U.S. 391, 394 (2002)(“As we interpret the statute, to show that a requested accommodation conflicts with the rules of a seniority system is ordinarily to show that the accommodation is not reasonable.”) (internal quotation marks omitted).

[9]United States v. Seeger, 380 U.S. 163, 184 (1965).

[10]Id.

[11]Id. at 165.

[12]Id. at 185.

[13]Welsh v. United States, 398 U.S. 333, 340 (1970) (“If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs” are sufficiently religious); see also Afr. v. Com. of Pa., 662 F.2d 1025, 1032 (3d Cir. 1981)(“First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs.”).

[14]Ringhofer v. Mayo Clinic, Ambulance, 102 F.4th 894, 898 (8th Cir. 2024).

[15]Id. (internal quotation marks omitted).

[16]Id. at 903.

[17]Fallon, 877 F.3d at 488.

[18]Id. at 489.

[19]Id.

[20]Id.

[21]Id. at 491 (quoting Africa, 662 F.2d at 1032) (internal quotation marks omitted).

[22]Id. at 492.

[23]Id.

[24]Id. (“[H]is concern that the flu vaccine may do more harm than good—is a medical belief, not a religious one.”).

[25]Brown v. Children’s Hosp. of Philadelphia, 794 F. App’x 226, 226 (3d Cir. 2020).

[26]Id.

[27]Id. at 227.

[28]Id.

[29]Id.

[30]Passarella v. Aspirus, Inc., 108 F.4th 1005, 1007 (7th Cir. 2024).

[31]Id.

[32]Id.

[33]Id.at 1007-08(“I am asserting my rights as a Christian to be exempt from taking this vaccine. I feel it was developed in a rush. I don’t trust the information and long-term effects. Therefore I believe this is not right for me to put this vaccine into my body. I also feel that it’s my body and no one has the right to tell me what to do with my personal being. I have prayed about this and have asked GOD for guidance, and believe that HE is with me on this decision.”).

[34]Id. at 1009 (“[F]or example, on the view that receiving the vaccine would violate a religious belief and implicate health and safety concerns. Congress permitted this, as we see no other way to give effect to the breadth of its definition of ‘religion’—as covering ‘all aspects’ of an employee’s religious observance, practice, and belief.”).

[35]Id. at 1010-11 (“Perhaps above all else, then, one guidepost is clear: [c]ourts should not undertake to dissect religious beliefs … because [they] are not articulated with the clarity and precision that a more sophisticated person might employ.”) (internal quotation marks omitted).

[36]Id. at 1011.

Molly John, Mount Everest, The Tallest Peak in the Himalayas, Nepal (photograph), in The World’s Tallest Mountain Ranges, WorldAtlas (Feb. 17, 2021), https://www.worldatlas.com/articles/the-world-s-tallest-mountain-ranges.html.

Authored by Madison E. Clark

The prevalence of constant litigation exposes corporations to the burden of navigating potentially frivolous lawsuits initiated by aggressive litigants.[1] As a result, high-level executive depositions, often called “apex depositions,” have become particularly arduous, costly, and impractical.[2] Instead of targeting employees or executives possessing direct knowledge of pertinent facts, plaintiff lawyers opt for apex depositions of top-tier executives despite the limited additional insights they may offer.[3] Such tactics are pursued with the awareness that these depositions are disruptive to the executives and the overall functioning of the companies they lead.[4] The practice underscores the importance of maintaining fair and equitable legal processes without unduly burdening corporate entities with frivolous or overly aggressive litigation strategies.[5]

Protective orders are a key safeguard against abusive discovery practices under the Federal Rules of Civil Procedure. Rule 26(c) outlines the general framework for requesting a court to prevent an apex deposition.[6] It is specifically provided in Rule 26 that “a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”[7] According to Rule 26(c), the party seeking the protective order must show “good cause” for the order to be issued.[8] The majority of states have also enacted laws mirroring civil procedure rules.[9] In Georgia, for instance, at the request of a party or the individual from whom discovery is sought, and upon showing good cause, “the court where the action is pending . . . [may] make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden and expense.”[10]

Despite the Federal Rules and complementary state law, courts have broad discretion when deciding whether protective orders should be imposed.[11] A unique line of authority has evolved under Rule 26(c)(1) known as the apex doctrine.[12] The apex doctrine “provides courts with a framework for determining whether good cause exists to forbid or limit the deposition of a high-ranking corporate executive who lacks personal, unique knowledge of facts relevant to the litigation.”[13] As a result of the apex doctrine, corporate bosses can avoid depositions unless a plaintiff demonstrates they have specific information that cannot be obtained anywhere else.[14] In contrast to Rule 26(c)(1), which imposes the burden of showing “good cause” why the deposition should not be taken, the apex doctrine shifts the burden of proof to the party seeking the deposition.[15] By applying the apex doctrine instead of the Rule 26(c)(1) standard, courts require the party seeking the deposition to: “(1) show that the putative deponent possesses ‘unique or superior’ and often ‘first hand’ relevant knowledge and (2) demonstrate it has pursued all other ‘less burdensome’ means of acquiring that knowledge.”[16]

Even though some courts refuse to recognize the apex doctrine as a separate rule, they reach similar conclusions as courts that adopt the doctrine solely on the basis of Rule 26(c) or similar state laws.[17] According to these courts, since Rule 26 allows a court to protect a party or person from annoyance, embarrassment, oppression, or undue burdens or expenses, the apex doctrine is not needed.[18] The inquiry is substantially the same regardless of whether a court uses the term “apex doctrine.”[19] For example, in General Motors v. Buchanan, the Georgia Supreme Court declined to adopt the apex doctrine but held that the party opposing the apex deposition may raise certain apex factors in support of a motion for protective order.[20] In particular, General Motors established that trial courts must evaluate certain apex factors to determine if “good cause” exists, which include “the executive’s high rank, the executive’s lack of unique personal knowledge of relevant facts, and the availability of information from other sources.”[21]

In determining whether to grant or deny a protective order under the apex doctrine, courts primarily assess whether the apex deponent possesses “unique or superior knowledge” pertinent to the matter in question.[22] This conclusion usually drives the court’s decision on whether to grant or deny the protective order because the apex doctrine “is normally aimed at high-level decision makers who have no particular knowledge of the facts pertaining to the particular lawsuit.”[23] Within In re Alcatel USA, Inc.,[24]the Texas Supreme Court made significant strides in clarifying the parameters of “unique” or “superior” knowledge within the context of apex depositions.In this case, the party seeking to depose a high-ranking corporate official was tasked with presenting factual evidence to the court, illustrating that the official could possess relevant, discoverable information.[25] The court’s ruling in Alcatel emphasized that mere relevance alone wouldn’t suffice; instead, there must be a demonstration that the executive holds personal knowledge that is either exclusive to them or of significantly greater quality or quantity than other potential sources.[26] The court underscored that a plaintiff must do more than merely establish the existence of discoverable information; they must establish that the executive possesses uniquely valuable insights into the matter at hand.[27] The Alcatel decision affirmed that adopting a relaxed “some knowledge” standard would effectively render apex depositions devoid of meaning, highlighting the necessity for a rigorous standard to ensure the integrity and efficacy of the legal process.[28]

A recent illustration of this principle emerged in the Florida Court’s ruling in Telsa, Inc. v. Monseratt,[29] where Florida’s version of the apex doctrine was invoked. Here, the court articulated that if a senior corporate official, through a sworn affidavit, attests to lacking unique knowledge concerning the disputed issues, plaintiffs must demonstrate they’ve exhausted alternative discovery avenues, that such methods were insufficient, and that the apex deponent indeed harbors distinctive, personal insights into the discoverable facts.[30] The court held that the plaintiff failed to meet this burden, and therefore, the apex deposition was denied.[31] Tesla emphasized the careful requirements for apex depositions and the strict criteria necessary to justify their necessity, highlighting the delicate balance between protecting high-ranking individuals from undue burdens and ensuring that relevant information is thoroughly explored in legal proceedings.

Furthermore, courts frequently consider whether the party seeking a deposition pursued less burdensome discovery methods when applying the apex doctrine.[32] The opposing party may request that the deposition of an apex deponent be postponed until all other discovery methods have been exhausted.[33] A court will generally determine whether a party seeking the deposition has exhausted a number of other discovery options, including depositions of lower-level employees with relevant knowledge, interrogatories, depositions on written request, and depositions of corporate representatives.[34] It may be possible for the court to bar the apex deposition if the requesting party has not exhausted all other discovery options.[35] However, in such a case, the court may include a provision to reconsider the protective order if the information cannot be obtained through other means.[36]

In the case of Celerity, Inc. v. Ultra Clean Holding, Inc., the plaintiff initiated a patent infringement lawsuit against the defendant.[37] The defendant sought a protective order to prevent the deposition of two high-ranking executives under the apex doctrine.[38] According to legal precedent, a plaintiff can only depose top-tier employees once it has exhausted other avenues of discovery, such as interrogatories or depositions of lower-level staff.[39] However, the court found that the plaintiff mistakenly believed that merely scheduling the executives’ depositions after those of lower-level employees fulfilled this requirement.[40] The court clarified that such an approach didn’t adhere to legal standards; rather, plaintiffs must demonstrate a genuine effort to obtain the desired information through thorough interrogatories and lower-level depositions before targeting high-ranking executives.[41] Half-hearted attempts at lower-level depositions solely to pave the way for apex depositions were deemed insufficient.[42] The court emphasized the necessity for plaintiffs to engage in bona fide efforts to obtain relevant information before pursuing apex depositions.[43]

The apex doctrine stands as a strategic tool for counsel to navigate the deposition process, offering the opportunity to sidestep or curtail the deposition of high-ranking executives or officers. It is crucial for counsel to fully understand the procedural and substantive nuances of the apex doctrine before seeking a protective order to prevent an apex deposition.[44] With well-supported motions for protective orders, skilled counsel can often achieve similar relief in jurisdictions that do not recognize the apex doctrine.[45] Even so, it’s important to remember that no apex deponent is completely protected from deposition, especially if they possess “relevant, unique, or superior knowledge of the issues in the case that cannot be obtained through alternative discovery methods.”[46] When this occurs, counsel should negotiate reasonable limits on the timing, location, scope, and method of the deposition to balance the parties’ interests.[47]

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[1] Lionel Lavenue et al., The Apex Doctrine and Depositions of High-Level Executives: The Divide Among, Reuters (Mar. 14, 2023, 12:39 PM), https://www.reuters.com/legal/legalindustry/apex-doctrine-depositions-high-level-executives-divide-among-circuit-courts-2023-03-14/.

[2] Id.

[3] Michael Hewes & Jordan Jarreau, The First Line of Defense Against Plaintiff Overreach, JDSupra(June 3, 2022), https://www.jdsupra.com/legalnews/the-apex-doctrine-and-the-c-suite-8813387/.

[4] Apex Depositions: A Question of Unique Personal Knowledge, Wasser Russ : Blog (Nov. 26, 2013), https://www.wasserruss.com/apex-depositions-a-question-of-unique-personal-knowledge/.

[5] Id.

[6] Nathan Davis et al., The Apex Rule and Protecting Your Client’s Management Team When Conducting Deposition Discovery, Found. for Nat. Res. and Energy L. 1, 6 (2022), https://www.jdsupra.com/legalnews/the-apex-rule-and-protecting-your-3081411/.

[7] Fed. R. Civ. P. 26(c)(1).

[8] Id.

[9] Sara Collin, Protecting High-level Executives with the Apex Doctrine, Best Laws. (June 21, 2022, 9:11 AM), https://www.bestlawyers.com/article/apex-doctrine-protects-executives/4580#:~:text=But%20what%20is%20the%20“apex,to%20high%2Dlevel%20government%20officials.

[10] Ga. Code § 9-11-26(c).

[11] Nathan Davis et al., supra note 6, at 2.

[12] Timothy St. George et al., Opposing “Apex” Depositions of Top Corporate Executives, Prac. L. 1, 1 (2015), https://www.troutman.com/a/web/4762/Opposing%252520Apex%252520Depositions%252520of%252520Top%252520Corporate%252520Executives%252520(1-602-9445)-REV.PDF.

[13] Gen. Motors, LLC v. Buchanan, 313 Ga. 811, 811 (Ga. 2022).

[14] Alison Frankel, Why Elon Musk Was Able to Duck a Deposition but Satya Nadella Was Not, Reuters (Jan. 10, 2024, 3:50 PM), https://www.reuters.com/legal/transactional/column-why-elon-musk-was-able-duck-deposition-satya-nadella-was-not-2024-01-10/.

[15] Amalia L. Lam, The Unwarranted Weight of a “Paper Barrier”: A Proposal to Ax the Apex Doctrine, 89 Wash. U. L. Rev 1457, 1462 (2012).

[16] Id. at 1462-63.

[17] Timothy St. George et al., supra note 12, at 2.

[18] Id.

[19] Id.

[20] Gen. Motors, 313 Ga. at 823.

[21] Christian Bromley & Justin Jorgensen, Georgia Supreme Court Finds “Apex Doctrine” Factors Are Entitled to Consideration, JDSupra (June 14, 2022), https://www.jdsupra.com/legalnews/georgia-supreme-court-finds-apex-8508771/.

[22] Timothy St. George et al., supra note 12, at 2.

[23] Wal-Mart Stores, Inc. v. Vidalakis, No 07- MC-00039, 2007 WL 4591569, at *1 (W.D. Ark. Dec. 28, 2007).

[24] 11 S.W.3d 173 (Tex. 2000).

[25] In re Alcatel USA, Inc., 11 S.W.3d 173, 173 (Tex. 2000).

[26] Id. at 179.

[27] Id.

[28] Id.

[29] 384 So. 3d 194 (Fla. Dist. Ct. App. 2024).

[30] Telsa, Inc. v. Monseratt, 384 So. 3d 194, 197 (Fla. Dist. Ct. App. 2024).

[31] Id.

[32] Amalia L. Lam, supra note 15, at 1467.

[33] Timothy St. George et al., supra note 12, at 2.

[34] Litigation, Overview – Apex Deposition Doctrine: Discovery, Bloomberg L., https://www.bloomberglaw.com/document/X1OMC7C000000 (last visited July 28, 2024).

[35] Nathan Davis et al., supra note 6, at 9 (“To the extent other forms of discovery could be used to discover the desired information . . . the apex executive should identify those alternative methods of discovery that likely would satisfy the need for discovery so that the court is informed of less-burdensome alternatives that may satisfy the need for discovery. Doing so often at least postpones the need for an apex witness to sit for a deposition and often precludes apex depositions altogether.”).

[36] Amalia L. Lam, supra note 15, at 1467.

[37] No. C 05-4374MMC(JL), 2007 WL 205067, at *1 (N.D. Cal. Jan. 25, 2007).

[38] Celerity, Inc. v. Ultra Clean Holding, Inc., No. C 05-4374MMC(JL), 2007 WL 205067, at *2 (N.D. Cal. Jan. 25, 2007).

[39] Id at *3.

[40] Id at *5.

[41] Id.

[42] Id.

[43] Id.

[44] Lionel Lavenue et al., supra note 1.

[45] Christopher R. Christensen & Justin M. Schmidt, Revisiting the Apex Doctrine, Priv. Project 200, 207 (2011), https://condonlaw.com/wp-content/uploads/2019/09/Revisting-the-Apex-Doctrine.pdf.

[46] Id.

[47] Id.

Devi Seitaram, Young Thug’s Lawyer Files to Remove Judge Glanville From YSL Trial Over Secret Meeting, URBANISLANDZ (June 18, 2024), https://urbanislandz.com/2024/06/18/young-thugs-lawyer-files-to-remove-judge-glanville-from-ysl-trial-over-secret-meeting/.

Authored by Leslie A. LaTurno

The newest headline in what has been hailed “Georgia’s longest – and unquestionably highest profile – trial in history”[1] has a criminal defense attorney facing jail time alongside his client. Attorney Brian Steel, who is representing rapper Young Thug on racketeering charges, was held in criminal contempt of court by Judge Ural Glanville on June 10, 2024.[2] Attorney Steel was made aware of ex parte communications[3] involving at least Judge Glanville, a Fulton County Prosecutor, and witness Kenneth Copeland, who was offered immunity in return for testimony that would incriminate Young Thug and other members of the “YSL”[4] rap group.[5] Copeland refused to testify and was held in contempt of court and taken into custody.[6] However, following an ex parte meeting with Judge Glanville and Fulton County Prosecutor, Copeland agreed to testify against the defendants. Attorney Steel was made aware of these ex parte communications, to which he confronted the court about the impropriety, and Judge Glanville demanded Attorney Steel disclose where he received the information.[7] Upon refusal, Judge Glanville took Attorney Steel into custody,[8] and he was sentenced to twenty days in jail.[9]

This is not the first incident of this nature, as many attorneys or parties in high profile cases have been held in contempt of court: Bruce Cutler (attorney for John Gotti),[10] Attorney and Civil Activist William Kunstler[11],  and esteemed Attorney, F. Lee Bailey[12], to name a few. Contempt originated in fourteenth-century England as a way to preserve the crown, but the American translation of contempt has become an inherently judicial power.[13] Contempt may occur in a direct or indirect fashion. Direct contempt occurs “in the presence of the court”[14] while indirect contempt occurs outside the view or presence of the court.[15] Notably, indirect contempt requires notice and hearing.[16] However, those charged with criminal contempt essentially become criminal defendants themselves and are required due process.[17] The contention around due process and contempt arises when determining if the judge issuing the contempt can be the same judge to rule on the contempt.[18] Should a judge wish to hold any party in contempt, the judge must distinguish if the party should be held in criminal or civil contempt.[19] The nature of the contempt hinges on the purpose of the punishment.[20] However, a judge may only impose a maximum jail sentence of six months and/or a fine of $1,000[21] – unless otherwise reduced by state statute.[22]

Ex parte communications are generally prohibited, except when allowed explicitly by statute. Should one party wish to communicate with the judge ex parte, “notice and opportunity [must] be afforded for the other party to participate.”[23] State judges are governed by the American Bar Association and the canons set forth by their respective state.[24] All attorneys are governed by the rules set forth by the American Bar Association as well.[25] In all instances, ex parte communications between judges and attorneys are improper unless provided by statute.

It is evident that the ex parte communications that occurred between the State, Judge Glanville, and witness Copeland were improper. Defense counsel Steel had the right to be a part of the meeting in chambers or to be given notice that the witness was being met with ex parte and made privy to the grounds for such a meeting.[26] Further, Judge Glanville holding Attorney Steel in direct, criminal contempt of court for not disclosing his source is completely improper. Attorney Steel did not violate an order of the court or impede the court from judicial process, but rather was punished for disobeying the will of Judge Glanville, which is not a valid reason to hold one in criminal contempt.[27] Immediately after being taken into custody, Attorney Steel filed a Motion for Emergency Bond which was immediately granted by the Supreme Court of Georgia.[28] Additionally, Steel appealed the criminal contempt ruling and the Supreme Court of Georgia issued a stay on the jail sentence while the appeal was pending.[29]

As of July 31, 2024, the Georgia Supreme Court has suspended the contempt ruling against Attorney Steel and Judge Glanville has been recused from the case by Judge Rachel Krause.[30] In her order for Judge Glanville’s recusal from Young Thug’s case, Judge Krause deemed that Glanville’s original Order Denying Recusal contained too many allegations and determinations about the case for him to remain an impartial trier of the law.[31] Judge Krause defends the propriety of Judge Glanville’s ex parte meeting.[32] However, the evaluation of the ethical soundness of the ex parte meeting (should it be requested) will be decided by the Judicial Qualifications Commission of Georgia.[33] If found improper, Judge Glanville faces removal from the bench.[34]

Should an attorney face contempt charges, the attorney should determine the setting in which the alleged contempt occurred and the punishment the judge would likely impose to understand the rights afforded. If an attorney believes the judge’s contempt ruling to be improper, they may move for sanctions against the improper parties,[35] appeal the contempt, or file an official complaint to the appropriate Circuit for Federal Judges[36] and the appropriate Judicial Commission for State Judges[37]. 

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[1] See Tim Darnell, Bond granted, no jail time this weekend for Young Thug attorney Brian Steel, Atlanta News First, https://www.atlantanewsfirst.com/2024/06/13/bond-granted-no-jail-time-this-weekend-young-thug-attorney-brian-steel/ (last visited Jul. 31, 2024).

[2]See Young Thug trial: Rapper’s lawyer won’t go to jail after Georgia Supreme Court grants bond, Fox 5 Atlanta (Jun. 13, 2024), https://www.fox5atlanta.com/news/young-thug-trial-brian-steel-jail-georgia-supreme-court-ruling; see also Edward Segarra, Young Thug’s attorney Brian Steel wins jail time appeal for contempt of court: Reports, USA Today, https://www.usatoday.com/story/entertainment/celebrities/2024/06/10/young-thug-lawyer-brian-steel-contempt-of-court/74049610007/ (last visited Jul. 31, 2024).

[3] Ex Parte, Black’s Law Dictionary (12th ed. 2024) (“taken or granted at the instance and for the benefit of one party only, and without notice to or contestation by, any person adversely interested.”).

[4] There are discrepancies as to what “YSL” stands for. Prosecutors allege that “YSL” stands for “Young Slime Life,” which would allude ties to an Atlanta gang. Defendants and witnesses allege “YSL” can stand for a multitude of things, including “Young Stoner Life,” and is merely the name of the label that represents various rap artists. See Defense attorney for rapper Young Thug found in contempt, ordered to spend 10 weeks in jail, AP News, https://apnews.com/article/young-thug-trial-brian-steel-db0fef2b3703d3041e27bfd7be354aa2 (last visited Jul. 31, 2024).

[5] See Defense attorney for rapper Young Thug found in contempt, ordered to spend 10 weeks in jail, AP News, https://apnews.com/article/young-thug-trial-brian-steel-db0fef2b3703d3041e27bfd7be354aa2 (last visited Jul. 31, 2024).

[6]See Ga. Code Ann. § 24-5-507; see also Shaddi Abusaid et al., Young Thug’s lawyer held in contempt, ordered to spend 10 weekends in jail, The Atlanta Journal-Constitution, https://www.ajc.com/news/crime/young-thugs-lawyer-held-in-contempt-taken-into-custody/77NH4GKN7NA27O4G2HL575NSDA/ (last visited Jul. 31, 2024).

[7] AP News, supra note 5.

[8] See Ex Parte Terry, 128 U.S. 289, 313 (1888) (“it is a settled doctrine . . . that for direct contempts committed in the face of the court . . . the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred.”).

[9] See Alexandra Del Rosario, Young Thug’s lawyer avoids 10 weekends in jail as Georgia high court puts order on hold, Los Angeles Times (Jun. 13, 2024) https://www.latimes.com/entertainment-arts/music/story/2024-06-13/young-thug-attorney-contempt-jail-brian-steel.

[10] See United States v. Cutler, 58 F.3d 825, 841 (2d Cir. 1995) (affirming the lower court holding Attorney Cutler in criminal contempt and sentencing him to probation for intentionally violating orders of the court and criminal rules by making comments to the media regarding Gotti’s case).

[11] See Kunstler v. Galligan, 168 A.D.2d 146, 150 (N.Y. App. Div. 1991) (upholding that the Supreme Court of New York was proper in holding Kunstler in summary criminal contempt for calling the Judge a disgrace in open court and on the record, because contempt “committed in its immediate view and presence” is proper “based upon the need to preserve order in the courtroom”).

[12] See United States v. Bailey, 175 F.3d 966, 968-69 (11th Cir. 1999) (finding the time served in Attorney Bailey’s criminal contempt jail sentence for violating court order to turn over client funds from escrow proper and ruling that the trial judge was proper in denying recusal as the appellant did not cite examples of “pervasive bias and prejudice”).

[13] See 18 U.S.C. § 401; see also The Contempt Power of the Federal Courts, Federal Judicial Center https://www.fjc.gov/history/work-courts/contempt-power-federal-courts (last visited Jul. 31, 2024) (“Congress vested the judiciary with contempt power via the Judiciary Act of 1789.”).

[14] Ex Parte Terry, 128 U.S. 289, 308 (1888) (holding that direct contempt is a punishable act or behavior that happen within the eye of the court and as such, does not require the court to provide notice to the defendant and does not allow the defendant the right to a hearing on the matter).

[15] See In re Savin, 131, U.S. 267, 277 (1889) (distinguishing that indirect contempt is “misbehavior for which the judge cannot have such personal knowledge, and is informed thereof only by the confession of the party, or by the testimony under oath of others”).

[16] See id. (“the proper practice is . . . to require the offender to appear and show cause why he should not be punished.”); see also Cooke v. United State 267 U.S. 517, 537 (1925) (“Due process of law [for indirect contempt proceedings] requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation.”).

[1]7 See Bloom v. Illinois, 391 U.S.194, 208 (1968) (“If the right to a jury trial is a fundamental matter in other criminal cases . . . it must also be extended to criminal contempt cases.”).

[18] See Offutt v. United States, 348 U.S. 11, 14 (1954) (“[I]n sitting in judgment on such a misbehaving lawyer the judge should not himself give vent to personal spleen or respond to a personal grievance”); see also Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971) (finding a judge may “become so ‘personally embroiled’ with a lawyer in a trial as to make the judge unfit to sit in judgment on the contempt charge”).

[19] See Gompers v. Buck Stove & Range Co., 221 U.S. 418, 443 (1911) (conceding that “[c]ontempts are neither wholly civil nor altogether criminal[,]” but distinguishing that for “civil contempt the punishment is remedial, and for the benefit of the complainant[,]” and for “criminal contempt the sentence is punitive, to vindicate the authority of the court”). 

[20] Id.  

[21] See 42 U.S.C. § 1995.

[22] See, e.g., Ga. Code Ann. § 15-11-31 (allowing for a maximum jail sentence of twenty days, rather than the six month maximum allowed by federal statute).

[23] 28 C.F.R. § 76.15; Model Code Jud. Conduct Rule 2.9 (Am. Bar Ass’n 2020).

[24] See, e.g., Ga. Code Jud. Conduct (2016); see also Al Canons Jud. Ethics (2019).

[25] See Model Rules of Pro. Conduct r. 3.5 (Am. Bar Ass’n 2024).

[26] See Model Code of Jud. Conduct r. 2.9 (Am. Bar Ass’n 2020); see also Model Rules of Pro. Conduct r. 3.5 (Am. Bar Ass’n 2024).

[27] See Ex Parte Terry, 128 U.S. at 308; see also Cooke v. United State 267 U.S. at 537.

[28] See Jozef Papp & Rosie Manins, Young Thugs lawyer granted bond, will not have to report to Atlanta jail this week, The Atlanta Journal-Constitution (Jun. 12, 2024), https://www.ajc.com/news/crime/young-thugs-lawyer-granted-bond-will-not-have-to-report-to-jail-this-week/H24G7FBH3JFE7CR632DRF7PIPM/.

[29] Id.

[30] See Darnell, supra note 1.

[31] See Order on Motions to Recuse Judge Glanville, The Honorable Rachel Krause (Jul. 15, 2024) https://www.courthousenews.com/wp-content/uploads/2024/07/order-on-motion-to-recuse-judge-glanville-final-fulton-superior.pdf;  see also 28 U.S.C. § 455(a), (b)(1); Offutt v. United States, 348 U.S. at 14.

[32] See Krause, supra note 31.  

[33] See Ga. Code Ann. § 15-1-21(a) (“Pursuant to Article VI, Section VII, Paragraph VI of the Constitution, there is hereby created the Judicial Qualifications Commission, which shall have the power to discipline, remove, and cause involuntary retirement of judges in accordance with such Paragraph.”).

[34] See id.

[35] See 28 C.F.R. § 76.15.

[36] See e.g., Judicial Conduct & Disability, United States Circuit of Appeals for the Eleventh Circuit, https://www.ca11.uscourts.gov/judicial-conduct-disability (last visited Jul. 31, 2024).

[37] See e.g., About the Complaint Process, Judicial Qualifications Commission of Georgia, https://gajqc.gov/complaints/ (last visited Jul. 31, 2024); Complaint Process, Alabama Judicial Inquiry Commission, https://jic.alabama.gov/complaint-process/ (last visited Jul. 31, 2024).