Did New York Times Attorney-Journalist Adam Liptak Violate Legal Ethics in Supreme Court Memo Leak?

The recent leak of internal Supreme Court memoranda to The New York Times—previously discussed by legal scholars Jonathan Adler, Josh Blackman, Will Baude, and Jack Goldsmith—constitutes a clear violation of the Court’s confidentiality obligations. However, the leak may also implicate serious legal-ethics concerns, particularly regarding one of the article’s coauthors, Adam Liptak, who is a licensed attorney in New York and subject to the state’s Rules of Professional Conduct.

Potential Violations of New York’s Legal Ethics Rules

There are at least two legal theories under which Liptak may have violated New York’s ethics rules:

• Rule 8.4(f): This rule prohibits a lawyer from knowingly assisting a judge or judicial officer in conduct that violates applicable rules of judicial conduct or other law. If a Supreme Court employee provided the memoranda to The Times with the intent of making them public, and if Liptak assisted in that effort—both factual questions requiring further inquiry—he may have violated this provision.
• Rule 8.4(a): Even if Liptak did not directly obtain the memos, he may have violated the rules by participating in the process of making them public, effectively aiding and abetting the leaker’s misconduct. The Rules explicitly state that misconduct can occur “through the acts of another.”

Relevant Codes of Conduct

The analysis hinges on whether Liptak’s actions align with the following ethical standards:

Judicial Employees’ Code of Conduct

Section 320, Canon 3.D.3, of the Judicial Conference’s Code of Conduct for Judicial Employees states 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.” While this Code does not apply to employees of the U.S. Supreme Court (§ 310.10(a)), the Court has adopted similar rules.

Supreme Court Justices’ Code of Conduct

The Code of Conduct for Justices of the Supreme Court of the United States includes several relevant provisions:

• Canon 2.A: Requires justices to “respect and comply with the law” and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality.
• Canon 4.D.4: Prohibits justices from disclosing or using nonpublic information acquired in a judicial capacity for purposes unrelated to official duties. Disclosing internal memoranda to The Times would plainly violate this canon.

Key Distinction: Advising vs. Enabling Misconduct

The nature of Liptak’s involvement is critical. Commenting on now-public memos—such as Adler, Blackman, Baude, and Goldsmith have done—differs fundamentally from playing a role in making them public. The latter could be analogous to an attorney advising a client on how to commit a crime without detection, rather than merely advising a defendant after the fact. As one commentator noted, an attorney who coauthored Closed Chambers with former Supreme Court clerk Edward Lazarus—a figure known for controversial disclosures—could hardly claim ignorance of the ethical implications of handling nonpublic information.