Month: April 2010

When Blind Justice Blinds Love: the Saga of the Gambling Grannies

/ Jack Marshall / 1 Comment

I’m sure you, like me, are eagerly anticipating the resolution of the case in New Britain Connecticut, in which one elderly sister is suing the other for a share of a 2005 Powerball jackpot of a half million dollars. The result, however, will be determined by technical legal issues, such as whether thee was there a valid contract between the sisters to split all gambling winnings, as the suing sis insists. There has already been one interesting wrinkle: gambling contracts are typically unenforceable, and so was this one until it applied to Powerball, which is state lottery and therefore, unlike other gambling in Connecticut, legal…just one more little bonus from of state governments taking over the numbers racket.

Yet the more important question, for those of us other than the sisters, Rose Bakaysa and her younger sister Theresa Sokaitis, is why some application of ethical values didn’t stop the lawsuit from getting to court. The situation is this: Rose and Theresa were always close,  and in their retirement, the two began gambling regularly, taking trips to casinos and playing the lottery. They made a deal, years ago (Rose is 87 and Theresa is 84) that if either of them won anything, they would split it 50-50.

In 2004, right before Rose hit the jackpot, the sisters had an argument over–what else?—some money, and stopped speaking to each other. Rose tore up the notorized contract, but Theresa kept it safe, just in case. This is why they are in court. Continue reading →

Gov. McDonnell’s Confederate History Month: The Musical

/ Jack Marshall / 9 Comments

“Confederate History Month.” That title should be sufficient to have any semi-conscious American’s ethics alarms ringing, like “Dina Lohan, Mother of the Year.” That it didn’t for Virginia governor Bob McDonnell, at least until furious critics rang it for him, tells us something disturbing about the Republican’s ethical blind spots, and perhaps other things as well. Perhaps we can truly get through to Bob with a song…sung to the tune of that traditional Virginia favorite, Dixie.  All together, now: Ohhhhhhhhhhhhhh… Continue reading →

Apology: How I Became an April Fool and an Ethics Dunce

/ Jack Marshall / 37 Comments

I’m not going to spin this. My conviction that the web hoax engineered by trial lawyer/blogger Eric Turkewitz violated the legal ethics rules was the product of a toxic mix of factors, prime among then being that I didn’t review my own files. When I finally, after nearly two days of answering complaints when I should have been hitting the books, checked the Rules of an ethics bellweather state that I often work in but had not for longer than usual, I read this:

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

…(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the
lawyer’s fitness to practice law;

This is an unusual version of Model Rule 8.4; indeed, the only other state to have adopted it (I think—I am no longer sure of much) is Wyoming. Yet it is a very useful variation of the Model Rule, because it eliminates all ambiguity about whether “dishonesty, fraud, deceit or misrepresentation” is meant to be as sweeping as it sounds. This formulation makes it clear that non-legal practice violations are covered, but that they have to reflect adversely on the lawyer’s fitness to practice law to qualify.

I had been wallowing in obscure clues from other jurisdictions–Tennessee, for example, which has the ABA wording but an odd Comment that begins…

[4] Paragraph (c) prohibits lawyers from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Such conduct reflects adversely on the lawyer’s fitness to practice law…

This could be taken to mean that all such conduct reflects adversely on fitness. The problem is, I don’t believe that, and I don’t believe that Tennessee means that.

The 8.4 version that I found was from…Virginia. Where I live. Where I have done more ethics CLE than anywhere else, beginning before the state even adopted the Model Rules format. Seeing this, two conclusions were unavoidable:

1. This is the predominant way jurisdictions think about 8.4. No state has rejected Virginia’s approach, and several have referenced it in Legal Ethics Opinions on the topic of what kind of non-legal practice-related conduct is covered by the Rules—-not subject to discipline, as I was arguing the past two days, but covered at all. The D.C. Bar has such an LEO, number 323, from 2004. I had a copy on file. The District of Columbia, where I’m a member of the bar.

2. I had made a big and inexcusable mistake, and compounded it by acting like the King of the Jerkwads. Continue reading →

New Vistas in Cruelty, Bigotry and Segregation in Itawamba County

/ Jack Marshall / 1 Comment

The last we heard about Constance McMillan was that the school  district in Itawamba County, Miss. had cancelled the senior prom rather than allow the teenager, who is gay, to attend wearing a tux and escorting a girfriend. A court challenge achieved a ruling that the District could not bar Constance from attending her prom,  but the  judge declined to compel the District’s prom to go forward when he was assured that a parent-sponsored replacement prom was being organized.

Now we learn, from Constance, that she and her date were sent to a country club in Fulton, Miss., to attend what they were told was the prom, but when she arrived she discovered that only that five other students were there. Continue reading →

April Fool’s Day Ethics

/ Jack Marshall / 17 Comments

What should be the standards of ethical conduct on April Fool’s Day? Research indicates that the tradition is a long one, and versions of Spring foolishness celebrations have been around for centuries. One source says, “April Fools’ Day is observed throughout the Western world. Practices include sending someone on a ‘fool’s errand,’ looking for things that don’t exist; playing pranks; and trying to get people to believe ridiculous things.”

Continue reading →

Accountability, the Phoebe Prince Suicide, and the Golden Rule’s Limitations

/ Jack Marshall / 35 Comments

Sometimes the application of the Golden Rule actually leads us away from an ethical result.

The suicide of a 15-year-old South Hadley, Mass girls who had been the victim of bullying and web attacks by fellow students continues to be framed as the failure of school administrators to protect the girl. What the school knew and when they knew it is the object of current investigation and controversy, but there is an inherent public and media bias in such cases that is rooted in laudable ethical motivations, indeed, it is rooted in the Golden Rule. But that bias often results in unfairness and injustice. Continue reading →

Arg! “The Ethicist” Endorses Piracy!

/ Jack Marshall / 15 Comments

Ah, another Sunday, another chapter in the crusade of Randy Cohen, a.k.a “The Ethicist,” to redefine the definition of “ethical.” I used to read “The Ethicist” column in The New York Times  magazine out of professional curiosity, later, bemusement, and now I read it as a diagnostic exercise. Where did Randy acquire his bizarre fondness for certain forms of dishonesty? For the record, Cohen’s batting average of actually giving ethical, rather than unethical, advice appears to be holding steady at .750, which means that he advocates unethical means one out of every four inquiries. I’d say Charley Rangel would do better, and nobody’s likely to call him “The Ethicist” any time soon.

This Sunday, Randy is endorsing web piracy…really. Continue reading →

The Ethics of Unethical Ethics Teachers

/ Jack Marshall / 5 Comments

An essay by lawyers Joel Cohen and Katherine A. Helm begins with this story:

“Noted ethics philosopher and Nobel Laureate Bertrand Russell once was questioned by the Harvard Board of Governors about having an extramarital affair with a student. When faced with the hypocrisy of being an ethics professor engaged in immoral conduct, Russell argued his private affairs had nothing to do with his professional duties. “But you are a Professor of Ethics!” maintained one of the board members. “I was [also] a Professor of Geometry at Cambridge,” Russell rejoined, but “they never asked me why I was not a triangle.”‘

The authors use the anecdote to explore the issue of whether proven ethics miscreants like Eliot Spitzer, Rod Blagojevich and disbarred class action lawyer William Lerach ought to be lecturing, speaking, or otherwise being listened to in regard to their opinions and advice on ethics. After all, acting teachers are often indifferent actors, and the best baseball managers weren’t much as players. Why should ethics be any different?  Continue reading →

Of Interns, Heroes, and Hoaxes

/ Jack Marshall / 11 Comments

Intern exploitation: The New York Times explores the burgeoning practice of using unpaid interns, exploiting college students and graduates desperate for experience by “allowing” them to do menial office tasks without even minimum wage compensation. It is a perfect scheme, really: the student doesn’t want to burn bridges, so doesn’t complain, and the company avoids hiring a worker. The problem is that it is dishonest and unfair, as well as illegal.

Remembering Ethics Hero Jerry terHorst: J. F. terHorst has died, and though he was a distinguished reporter, what made him an Ethics Hero was one act of principle unrelated to reporting. Continue reading →

Isolating Corey Haim: Child Star Deceit and Disinformation in the Media

/ Jack Marshall / 7 Comments

It is clear that the news media, and especially the entertainment and pop culture media, don’t want to lose their cuddly child performers. Thus when a former kid star like Corey Haim perishes at a young age, the victim of a dysfunctional childhood turned fatal by addictions to fame and drugs, the sad story is usually told as a cautionary tale about how one young actor’s early promise and talent turned to dust and destruction because of his own weaknesses and missteps. A responsible media would use such events to examine the larger, serious, and mostly ignored problem of child abuse and exploitation in the entertainment business, and its terrible toll of casualties.The media is not responsible on this topic, however, and in the case of Haim, seemed to go out of its way to falsely represent his fate as the exception, rather than the rule. Continue reading →