Court Leaks and Attorney-Journalists

The professional-ethics implications of making court confidences public.

The recent leak of internal Supreme Court memoranda to the New York Times, discussed earlier by Jonathan Adler and Josh Blackman—as well as by Will Baude and Jack Goldsmith elsewhere—was plainly a serious violation of the Court's confidentiality obligations. But it may also reflect serious legal-ethics violations by one of the Times article's coauthors, Adam Liptak, whom I understand to be a licensed attorney in New York and subject to that state's Rules of Professional Conduct.

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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.

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.

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). Commenting on now-public memos, the way that Adler, Blackman, Baude, and Goldsmith have, is very different from playing a role in making them public—akin to the difference between an attorney's advising a defendant who has already committed a crime and an attorney advising a client on how to commit a crime without detection. An attorney who coauthored Closed Chambers with the infamous ex-Supreme-Court-clerk Edward Lazarus could hardly claim that the nonpublic information printed in the book was all Lazarus's fault, and that all he did was help write it. According to Jodi Kantor, the article's coauthor, she and Liptak "spent many weeks anticipating your reactions to these memos, which allow us to hear what the justices sound like in private"—suggesting active participation in the publication process on Liptak's part. In any case, this is something a disciplinary investigation could clear up.

(Note: Last night I sent a draft version of this post to Liptak for his comments or corrections, asking for any "facts about your role that would cast the analysis below in a different light." Today I received the following statement from a Times spokesperson: "The New York Times's reporting on the Supreme Court, including the recent article by Jodi Kantor and Adam Liptak on the court's 'shadow docket' rulings on presidential power, brings to light vital information for the public to understand how the court carries out its duties in governing the lives of millions of Americans. We are confident that Adam Liptak acted consistently with his professional obligations both as a lawyer and a journalist.")

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. As a 2022 discussion in the New York State Bar Journal suggested, releasing nonpublic information—in that case, a draft opinion—"is prejudicial to the administration of justice, as it compromises and disrupts the deliberative process, the most essential function of the court. The sanctity of the deliberative process is the cornerstone of the judicial system and such a violation can lead to a host of problems." If the administration of justice is prejudiced by an attorney's refusing to cooperate in individual discipline proceedings (as per Rule 8.4 cmt. 3), how much more so would it be prejudiced by the public release of judges' nonpublic deliberations?

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Nothing about this analysis is changed by Liptak's role at the Times.

Claims about there being a public interest in the memos, for example, don't make their publication any less prejudicial to the administration of justice. Judges don't run for reelection, and they're supposed to operate without outside political pressure, so the argument that "the public needs to know" is at its minimum. If the public interest really requires disclosure of internal memoranda from the Supreme Court (or, for that matter, internal memoranda from the New York Supreme Court, Appellate Division, First Judicial Department), then those courts can revise their rules, officially releasing their internal memoranda for public review. But if those courts choose instead to keep some of their confidential deliberations confidential—as indeed they have, and as the proper functioning of a court usually requires—then no individual employee or officer of the court, whether the leaker or Liptak, can claim the power to overrule that decision on his or her own. The public interest isn't advanced by releasing only those memoranda that individual leakers choose to release for their own purposes.

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.

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. (A lawyer who receives unsolicited material accidentally produced by the other side sometimes has to give it back.) And were an investigation to show that Liptak solicited or took part in soliciting a violation of court-imposed confidentiality rules, that solicitation wouldn't be protected by the First Amendment, any more than any other speech that serves as an "integral part of conduct in violation of a valid" legal-ethics rule. Either way, a First Amendment defense on Liptak's part requires a fact-intensive inquiry, which the First Department's Attorney Grievance Committee could conduct.

More importantly, the First Amendment isn't reserved for professional journalists—applying equally to the "lone pamphleteer[] or street corner orator[] in the Tom Paine mold" or to "someone who spends substantial amounts of money in order to communicate [his] political ideas through sophisticated means." If an attorney were to hand out sealed filings on the street corner, if a current law clerk were to publish draft opinions on Instagram, or if I were to post smuggled memoranda on this blog or on my personal X account, each of us would be no less entitled to First Amendment protection—and no less subject to professional discipline—than those attorneys fortunate enough to have jobs at the New York Times. Either the professional conduct rules restrict the violation of court-imposed confidentiality requirements or they don't.

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Enforcing state rules of professional conduct against attorney-journalists won't end leaks like this. Maybe some attorneys in Liptak's position would rather just be journalists, giving up their licenses to practice law; and maybe other journalists who aren't attorneys (perhaps including Kantor) will end up being the ones to publish such leaks instead. Courts don't have the same tools to regulate the conduct of those who don't claim a right to practice before them. But publications like the Times use licensed attorneys as journalists for a reason, namely to have the benefit of their practical expertise. You don't have to be a lawyer to work for the Times; but those who want to keep the right to practice law—and to keep the status of an officer of the court—have to shoulder its responsibilities too.

Regardless of what one thinks of the "emergency docket" or the Clean Power Plan, leaking confidential court materials poses a real danger to the integrity of the justice system. That's why licensed attorneys usually fear to touch such leaks with a ten-foot pole. The leak of a draft opinion in Dobbs, for example, led directly to an assassination attempt on Justice Brett Kavanaugh, aimed at preventing that draft opinion from obtaining his vote for the necessary majority. It's only a longstanding culture of respect, fidelity, and trust among attorneys and court personnel that prevents these leaks from becoming a daily occurrence—and that allows courts to deliberate effectively on the law. It can only undermine that culture further for the disciplinary system to overlook a decision by a licensed attorney and officer of the court to make these leaks more effective weapons against any judge with whom the leaker disagrees.

For all I know, Liptak is otherwise an upstanding guy, and he's well thought of by people I trust. But we don't want a world where every internal judicial memo serves as a potential weapon in a political fight, one available to whoever's willing to violate the ethics rules first. And one way to help forestall that world is for the discipline system to treat with seriousness the lawyers and judicial employees whose actions would otherwise speed its arrival.

(Cross-posted at Divided Argument.)