As the culminating event of its year-long 125th Thought Leadership Initiative, the Maryland State Bar Association hosted an in-person Spark Series Capstone Program on January 20, 2023, at the University of Maryland Carey School of Law. The event created space for intellectual stimulation and deep reflection and included thought-provoking keynote speakers and panels with high-level professionals. Attendees were challenged to think about emerging issues and the legal profession’s role in grappling with ethical and justice implications – that will have a lasting impact on the MSBA and the profession as a whole.
Keynote speaker Attorney General Anthony Brown opened the event by reminding attorneys of their call to be guardians of justice. As the chief legal officer of the state, AG Brown emphasized his own commitment to the pursuit of equity and promised that the attorneys in his office are held to the highest professional standards. “The pursuit of equity and justice is where we in the Attorney General’s office stand every day,” he stated.
Guardians of Justice
Attorneys Erica Newland, Counsel of Protect Democracy, and Lauren Stiller Rikleen, Interim Executive Director of Lawyers Defending American Democracy, talked with panel moderator and MSBA Past President Natalie McSherry on the topic of Guardians of Justice. Rikleen pushed attorneys to reflect on why, during a time when democracy and its institutions are at such risk, the legal profession as a whole has stayed so silent. Newland argued that lawyers are custodians of democracy and emphasized that “people look to us . . . to help guide everyone when lines have been crossed.”
Rikleen and Newland gave concrete examples of the ways their organizations facilitate attorneys, making known their support for democracy and the rule of law. Lawyers Defending American Democracy asks lawyers to sign a “Democracy Commitment,” while Protect Democracy has garnered signatures on letters saying, for example, that legal lines have been crossed. “When a thousand lawyers . . . put their names on the line,” Newland said, “folks pay attention, and that narrative shifts.”
Both Rikleen and Newland noted that bar associations have a role to play by taking leadership in protecting the rule of law. Newland also indicated that a bar association “might be especially well positioned” to help organize support for attorneys who might take on professional risk by speaking out, for example, as a whistleblower.
In the second panel of the day, Attorneys Alec Karakatsanis, Founder and Executive Director of Civil Rights Corps, and Michael R. Bromwich of Steptoe & Johnson spoke with moderator and A2JC Executive Director Reena Shah on the theme of reforming justice.
Referring to what he calls the “injustice system,” Karakatsanis described the fundamental problems with systems such as money bail – where poor people sit in jail for such offenses as parking tickets, and the war on drugs, which has led to millions of people jailed but has not reduced the level of drug use, which is higher than ever.
Bromwich discussed his part in investigating and reporting on the Baltimore City Police Department’s Gun Trace Task Force Scandal. After a two-year investigation that resulted in the report, Anatomy of the Gun Trace Task Force Scandal: Its Origins, Causes, and Consequences, the firm’s findings included an underfunded internal affairs department filled with people who weren’t up to the task, a lack of supervision, and a lack of a system for accountability, giving police officers the freedom to do whatever they wanted.
Asked about the role of attorneys in these failures, Bromwich said that there was a lack of skepticism on the part of lawyers when officers were accused of misdoings, a failure on the part of defense attorneys to litigate when there was a lack of probable cause for arrest, and even pro-government judges who accepted non-credible police testimony. Although Bromwich noted there were some exceptions to this, overall, there were broad-scale failures and shortcomings in the entire universe of lawyers involved.
Science, Technology & Justice
During the third panel discussion of the day, attorneys Amanda C. Pustilnik, Professor of Law, University of Maryland Carey Law, and Lydia X. Z. Brown, Policy Counsel for Privacy and Data, Center for Democracy and Technology, discussed the role of science and technology in justice with moderator and MSBA President David Shapiro. Professor Pustilnik discussed the core of her work, which is based on the idea that science and technology are fundamentally important to justice. She was called to the field after her sister suffered a traumatic injury that caused a disabling pain syndrome and was treated poorly in both the medical and legal systems because there was no visible cause of her pain.
Professor Pustilnik noted that we now have 25 years of good brain imaging science that has been used successfully in courtrooms and to settle cases by showing that people who claim pain ought to be viewed differently. Describing herself as reasonably “tech positive” but not “tech utopian,” she noted that the use of this science has changed decision-making at a criminal and social services level. It has led to the Veterans’ Administration changing how it handles claimants with chronic pain and demonstrates why it’s terrible to put adolescents into the adult criminal justice system. And the future marches forward: Professor Pustilnik said that the Social Security Agency has put out requests for proposals for “pain-o-meters” to figure out if pain is real or fraudulent.
Brown discussed the impact of algorithmic harm on disabled persons, explaining that there is a presumption of fraud built into social services/public benefits computer programs. As an example, they noted that, in the time of COVID and distance testing, virtual test proctoring companies attempt to control unauthorized activity. Brown said that this approach fails to recognize wider systemic issues, such as why do students cheat in schools; this is a system where students are being taught to earn high grades rather than synthesize knowledge.
The Capstone event concluded with a roundtable discussion moderated by Donna Hill Staton, joined by four Deans of area law schools: Dean Ronald Weich, University of Baltimore School of Law; Renée McDonald Hutchins, University of Maryland Carey School of Law; Dean Roger A. Fairfax Jr. of American University Washington College of Law; and Dean Dayna Bowen Matthew of George Washington University School of Law.
The deans discussed the grand challenges they face as those leading the institutions raising tomorrow’s lawyers. Dean Hutchins noted that law school deans have come to understand that they are raising a generation of lawyers who will be called to uphold democracy. “Lawyers have a very real role to play in maintaining and supporting American democracy.” It’s a significant likelihood that one of them at the table is educating a future president, senator, or Supreme Court justice, which is a remarkable responsibility.
Dean Weich agreed but said that future lawyers will also have to work to improve American democracy and institutions. There are significant flaws in the justice system and other facets of our democracy. Dean Weich thinks today’s students are receiving the tools they’ll need to work within the system to change it.
Dean Fairfax noted that law schools must instill values that will not only keep the profession strong but will renew and prop up democracy … stakes have never been higher.
Dean Matthew cited the late law professor and educator Lani Guinier, who said that admission to law school is a political decision. Dean Matthew believes the charge of law schools now is that they must educate “a veritable army to save, to protect, to fight for democracy, the rule of law, justice … what we are doing is no less than, I think, educating an army for tomorrow.” Going further, she said it’s not only the job of law schools—“We are the last best hope.”