RE: Unethical Conduct of Ms. Elaine Jones

On April 17, 2002, Ms. Jones contacted the office of U.S. Senator Edward Kennedy asking him to delay any Senate Judiciary Committee hearings on nominees to the U.S. Court of Appeals for the 6th Circuit.

December 3, 2003

By Federal Express:
Virginia State Bar
Intake Office
707 East Main Street
Suite 1500
Richmond, VA 23219

RE: Unethical Conduct of Ms. Elaine Jones

Dear Office of Bar Counsel:

We write to report the unethical conduct of Ms. Elaine R. Jones, a member of the Virginia State Bar and President and Director-Counsel of the NAACP Legal Defense and Education Fund, Inc., in New York, New York. Specifically, Ms. Jones violated both the spirit and the letter of the Virginia Rules of Professional Conduct when she intentionally acted to influence and disrupt an impartial tribunal that was then in the deliberative process of considering a landmark constitutional case in which she was counsel to one of the parties. Ms. Jones transgressed the boundary of an ethical advocate and engaged in misconduct by violating clear rules regarding her duties to maintain the "Impartiality and Decorum of the Tribunal," see Rule 3.5, and not to "state or imply an ability to influence improperly … any tribunal, legislative body, or public official," see Rule 8.4.

On April 17, 2002, Ms. Jones contacted the office of U.S. Senator Edward Kennedy asking him to delay any Senate Judiciary Committee hearings on nominees to the U.S. Court of Appeals for the 6th Circuit. At that time, the en banc 6th Circuit was actively considering a constitutional and legal challenge brought against the race-conscious affirmative action admissions program used by the undergraduate school at the University of Michigan – a case in which Ms. Jones was acting as counsel to a party, the intervenor-defendant-appellees. According to a memorandum written by the Senate staffer who spoke with Ms. Jones, the purpose and intent of Ms. Jones’ request was "to ask that the Judiciary Committee consider scheduling Julia [Smith] Gibbons, the uncontroversial nominee to the 6th Circuit[,] at a later date, rather than at a hearing next Thursday, April 25th." (A copy of the memorandum is enclosed.) Moreover, according to the memorandum, Ms. Jones asked for "the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th Circuit."

Ms. Jones wanted to delay all nominations to the U.S. Court of Appeals for the 6th Circuit because, according to the memorandum, "[t]he thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge … is confirmed before the case is decided, that new judge will be able … to review the case and vote on it." This concerned Ms. Jones because she was representing the intervenor-defendant-appellees, who were defending the affirmative action program in front of the en banc 6th Circuit. In other words, Ms. Jones believed she could win her case before the en banc 6th Circuit as it was currently composed on April 17, 2002, and, therefore, she did not want a new judge confirmed because a new judge might adversely affect the outcome of her case.

The fact that Ms. Jones was intentionally attempting to improperly influence the outcome of a pending case and engaging in partisan political manipulation was not lost on the Senate staffer who spoke with Ms. Jones. The staffer noted in the memorandum that he/she was "concerned about the propriety of scheduling hearings based on the resolution of a particular case." This concern about both the appearance and actuality of impropriety is codified in the Rules of Professional Conduct to which attorneys are subject. Specifically, Rule 8.4(d) of the Virginia Rules of Professional Conduct states that "[i]t is professional misconduct for a lawyer to … state or imply an ability to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official." Likewise, Rule 3.5(f) states that "[a] lawyer shall not engage in conduct intended to disrupt a tribunal." Yet despite these ethical commands, Ms. Jones intentionally attempted to disrupt and exert improper influence on the judicial body hearing her client’s pending case by requesting that a U.S. Senator and member of the Senate Judiciary Committee stack the judicial deck in her favor.

Not only was Ms. Jones’ conduct not consistent with the letter of the Virginia Rules of Professional Conduct, it also was in direct conflict with their spirit. As stated in the Preamble, "[a] lawyer is … an officer of the legal system and a public citizen having special responsibility for the quality of justice." Thus, it is little surprise that "[a] lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials." Our system of justice is dependent upon the trust and belief of the public that the judiciary is able to resolve cases in an impartial manner free of improper and ex parte influence. Ms. Jones’ intentional actions taken to influence the outcome of a pending case in which she was counsel clearly violate this spirit. Not unlike an attorney who seeks to improperly influence a specific judge or juror, Ms. Jones’ goal was to influence the outcome of a pending case through means beyond ethical advocacy. Her actions irreparably hurt the common trust the public puts in an impartial judiciary and its decisions.

For these reasons, and to safeguard the integrity of both the impartial judiciary and its process, we urge you to fully investigate and take appropriate action against Ms. Elaine R. Jones. As a member of the Virginia State Bar, Ms. Jones is subject to your ethical oversight. She can be reached by mail at the NAACP Legal Defense and Education Fund, Inc., 99 Hudson Street, 16th Floor, New York, New York 10013, or by telephone at (212) 965-2200. Of course, we would be willing to offer any assistance that we can with regard to this matter and kindly request that you keep us apprised of all non-confidential proceedings and actions taken in your consideration of this matter.

Sincerely,

Enclosure

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