At Volokh Conspiracy, Stephen Sachs, the Scalia Prawf at Harvard Law School, posits a curious take on the New York Times article about the leaked memos revealing the shift in how the Supreme Court dealt with the shadow docket. The premise is that one of the writers, Adam Liptak, is a lawyer as well as journalist, such that his involvement in either obtaining the confidential memos or writing about them violates attorney disciplinary rules.

There are at least two theories under which Liptak may have violated the ethics rules.

First, Liptak may have violated Rule 8.4(f) of Professional Conduct, which provides that a “lawyer or law firm shall not * * * knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” If a Supreme Court employee provided memoranda to the Times in the hope of making them public, and if Liptak assisted in that effort—both questions of fact, which would have to be answered through a careful inquiry—he may have violated this provision. Section 320, Canon 3.D.3, of the Judicial Conference’s Code of Conduct for Judicial Employees provides that a current or former judicial employee “should never disclose any confidential information received in the course of official duties except as required in the performance of such duties.” That Code doesn’t apply to “employees of the United States Supreme Court,” id. § 310.10(a), but it’s widely known that the Court has adopted similar rules that do.

As this is inapplicable to the Supreme Court, “widely known” is doing a lot of heavy lifting here. But there’s more.

Or, if the memoranda had been provided to the Times by one of the Justices themselves, Liptak’s assistance with that effort might have violated Rule 8.4(f), which extends to rules violations by “a judge.” Canon 2.A of the Code of Conduct for Justices of the Supreme Court of the United States provides that “[a] Justice should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” And Canon 4.D.4, though placed in a section devoted to financial activities, states generally that “[a] Justice should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the Justice’s official duties”—which disclosing internal memoranda to the Times would plainly be.

While this argument may apply to a justice, it’s relation to Liptak is by way of his “assisting” the justice’s disclosure of nonpublic information.

Or, if Liptak didn’t play any role in obtaining the memos directly, he might still have assisted the leaker’s violation by taking part in the process of making them public—aiding and abetting that effort, and violating the Rules “through the acts of another” per Rule 8.4(a).

The second argument is even more attenuated from the circumstances here.

Second, regardless of how the Times obtained the memos, Liptak may also have violated Rule 8.4(d), which forbids a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Courts may act in public—releasing their judgments and opinions as a matter of routine—but judges have to think in private. And multimember courts can’t deliberate effectively, much less administer justice effectively, if their judges can’t write anything down for fear of seeing it in the next day’s Times.

The basis of this argument is the pre-publication release of a decision, such as what happened in the Dobbs case, although here the nonpublic information was decade-old memos, not a decision. But what about the fact that Liptak is also a journalist as well as lawyer, with the right, if not duty, to assist in the disclosure and publish it?

Nor does it matter that Liptak is a journalist as well as an attorney. For example, if a Times journalist were also a licensed New York social worker, he might be required to act as a mandatory reporter and to inform the Office of Children and Family Services of suspected child abuse discovered in his professional capacity—even if he might prefer to keep that information confidential and to develop a source for news articles about the abuse instead. The additional role carries with it additional duties (even conflicting duties), whether they involve communicating information or keeping it confidential.

Is the duty not to engage in conduct prejudicial to the administration of justice equivalent to the duty of mandatory reporters? And then there’s the First Amendment implications.

Nor does Liptak necessarily have any First Amendment right to violate the Rules of Professional Conduct. If, for example, the nonpublic material described in the article had arrived at the Times unsolicited, it’s possible that the First Amendment (as construed in Bartnicki v. Vopper) would restrict state interference with its publication. But attorneys are often under confidentiality obligations that the First Amendment doesn’t impose on others.

Do limitations on professional speech with regard to client confidences apply to information gathered from non-clients, for which there is no professional duty of confidentiality?

Was Liptak wrong to participate in either the disclosure or publication of the leaked memos? Was his role as journalist in conflict with his duties under the disciplinary rules? Liptak is admitted to practice law both in the State of New York and before the United States Supreme Court. Does that in any way affect the propriety of his involvement in the disclosure of the leaked memos?

It’s one thing to criticize the internal leak of documents, whether memos or pre-publication decisions, by someone inside SCOTUS, whether justice or otherwise, but that’s not Liptak. Still, as a lawyer, did he do anything wrong?

*Tuesday Talk rules apply.