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. * * * 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 functi